Covenants of the Company. The Company covenants and agrees with you that: (a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws. (b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request. (c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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. (d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request. (e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter. (f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 3 contracts
Samples: Underwriting Agreement (Genetic Vectors Inc), Underwriting Agreement (Genetic Vectors Inc), Underwriting Agreement (Investors Capital Holdings LTD)
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 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 (i) will comply with all requirements imposed upon it by the Act and the 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 the Prospectus, as then amended or supplemented, and (ii) will not at file with the Commission any timeprospectus or amendment referred to in the first sentence of section (a) (i) hereof, whether before any amendment or after the effective date, file supplement to such prospectus or any amendment to or supplement the Registration Statement as to which the Prospectus of which you Underwriter 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 you or your counsel filing the Underwriter shall not have reasonably objected or which is not in material compliance given its consent. The Company will prepare and file with the Act Commission, in accordance with the rules and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, regulations of the receipt of Commission, promptly upon request by the Underwriter or counsel to the Underwriter, any comments of the Commission or any state securities department, when amendments to the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when or amendments or supplements to the Prospectus has been filed that may be necessary or advisable in accordance connection with said Rule 430A, the distribution of the effectiveness of Securities by the Underwriter, and will use its best efforts to cause any post-effective such amendment to the Registration Statement to be declared effective by the Commission as promptly as possible. The Company will advise the Underwriter, promptly after receiving notice thereof, of the time when the Registration Statement or Prospectus, any amendment thereto has been filed or the filing of any supplement to declared effective or the Prospectus or any amended Prospectusamendment or supplement thereto as been filed and will provide evidence satisfactory to the Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after receiving notice or obtaining knowledge thereof, of any request made (i) the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any order suspending trading in the Common Stock of the Companyamendment or supplement thereto, or of (ii) the suspension of the qualification of the Securities, the Option Securities or the Representatives any Securities for offering or sale in any jurisdiction, (iii) the institution, threat or of the institution contemplation of any proceedings proceeding for any such purposespurpose, and or (iv) any request made by the Commission for amending the Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use withdrawal thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. .
(c) The Company shall file the Prospectus (will, in form and substance satisfactory cooperation with counsel to the Underwriter) or transmit , arrange for the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date qualification of the Registration Statement. In case Securities for offering and sale under the Blue Sky or securities laws of such jurisdictions as the Underwriter may designate and will continue such qualifications in effect for as long as may be necessary to complete the distribution of the happeningSecurities.
(d) If, at any time within such period as when a Prospectus prospectus relating to the Securities is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies event occurs as a result of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that which the Prospectus, as so then amended or supplemented, will not contain would include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if for any other reason it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the rules or regulations of the Commission thereunder, the Company will promptly notify the Underwriter thereof and, subject to Section 4(a) hereof, will prepare and furnishing of any such file with the Commission, at the Company's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or supplement omission or effects such compliance.
(e) Intentionally left blank.
(f) The Company will, without charge, provide to the Underwriter and to counsel for the Underwriter (i) as many signed copies of the registration statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto) as the Underwriter may reasonably request, (ii) as many conformed copies of such registration statement and each amendment thereto (in each case without exhibits thereto) as the Underwriter may reasonably request, and (iii) so long as a prospectus relating to the Securities is required to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities delivered under the Act, as many copies of each Preliminary Prospectus or the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation Prospectus or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are any amendment or may be required to continue such qualification in effect for so long supplement thereto as the Underwriter may reasonably request.
(cg) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the The Company, at its expenseas soon as practicable, will annually furnish make generally available to its shareholders a report of its operations to include financial statements audited by independent public accountants, security holders and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet an earnings statement of the Company as at that satisfies the end provisions of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow Section 11 (a) of the Company for such fiscal year, all in reasonable detail Act and accompanied by a copy of the certificate or report thereon of independent public accountantsRule 158 thereunder.
(dh) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to youreserve and keep available for issuance that maximum number of authorized but unissued shares of Common Stock which are issuable upon exercise of any outstanding warrants, the warrants included in the Units and the Underwriter's Warrant (including the underlying securities) outstanding from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requesttime.
(ei) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner being sold by it as set forth under "Use of Proceeds" in the Prospectus. No portion of .
(j) Intentionally left blank.
(k) Prior to the proceeds shall be usedClosing Date or the Option Closing Date (if any), the Company will not, directly or indirectly, without prior written consent of the Underwriter, issue any press release or other public announcement or hold any press conference with respect to acquire any securities the Company or its activities with respect to the Offering (other than trade releases issued by in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations).
(l) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) under the Act, copies of the Prospectus including the information omitted in reliance on Rule 430A, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(m) The Company will assist the Underwriter in causing the Securities to be listed on the Nasdaq SmallCap Market on the Effective Date and to maintain such listing thereafter.
(n) During the period of five years from the Firm Closing Date, the Company will, as promptly as possible, not to exceed 135 days, after each annual fiscal period render and distribute reports to its stockholders which will include audited statements of its operations and changes of financial position during such period and its audited balance sheet as of the end of such period, as to which statements the Company's independent certified public accountants shall have rendered an opinion and shall timely file all reports required to be filed under the securities laws.
(o) During a period of three years commencing with the Firm Closing Date, the Company will furnish to the Underwriter, at the Company's expense, copies of all periodic and special reports furnished to stockholders of the Company and of all information, documents and reports filed with the Commission.
(p) The Company has appointed Corporate Stock Transfer, Inc., Denver Colorado, as transfer agent for the Common Stock, subject to the Closing. The Company will not change or terminate such appointment for a period of three years from the Firm Closing Date without first obtaining the written consent of the Underwriter. For a period of three years after the Effective Date, the Company shall cause the transfer agent to deliver promptly to the Underwriter a duplicate copy of the daily transfer sheets relating to trading of the Securities. The Company shall also provide to the Underwriter, on a weekly basis, copies of the DTC special securities positions listing report.
(q) During the period of 180 days after the date of this Agreement, the Company will not at any time, directly or indirectly, take any action designed to or that will constitute, or that might reasonably be expected to cause or result in, the stabilization of the price of the Common Stock to facilitate the sale or resale of any of the Securities.
(r) The Company will not take any action to facilitate the sale of any shares of Common Stock pursuant to Rule 144 under the Act if any such sale would violate any of the terms of the Lock-up Agreements, or permit the modification of any such Lock-up Agreements without the prior written consent of the Underwriter.
(fs) As soon as it is practicable, but in any event not later than Prior to the first (lst) 120th day of after the fifteenth (15th) full calendar month following the effective date of the Registration StatementFirm Closing Date, the Company will make available provide the Underwriter and their designees with four bound volumes of the transaction documents relating to the Registration Statement and the closing(s) hereunder, in form and substance reasonably satisfactory to the Underwriter.
(t) The Company shall consult with the Underwriter prior to the distribution to third parties of any financial information news releases or other publicity regarding the Company, its security holders business, or any terms of this offering and the Underwriter will consult with the Company prior to the issuance of any research report or recommendation concerning the Company's securities. Copies of all documents that the Company or its public relations firm intend to distribute will be provided to the Underwriter for review prior to such distribution.
(u) The Company and the Underwriter will advise each other immediately in writing as to any investigation, proceeding, order, event or other circumstance, or any threat thereof, by or relating to the Commission, the National Association of Securities Dealers, Inc., NASDAQ or any governmental authority, that could impair or prevent the Offering. Except as required by law or as otherwise mutually agreed in writing, neither the Company nor the Underwriter will acquiesce in such circumstances and each will actively defend any proceedings or orders in that connection.
(v) The Company shall first submit to the Underwriter certificates representing the Securities for approval prior to printing, and shall, as promptly as possible, after filing the Registration Statement with the Commission, obtain CUSIP numbers for the Securities.
(w) If not already so registered, the Company will prepare and file a registration statement with the Commission pursuant to section 12 of the 1934 Act, and will use its best efforts to have such registration statement declared effective by the Commission on an earnings statement accelerated basis on the day after the Effective Date. For this purpose the Company shall prepare and file with the Commission a General Form of Registration of Securities (which need not Form 8-A or Form 10).
(x) For so long as the Securities are registered under the 1934 Act, the Company will hold an annual meeting of stockholders for the election of directors within 180 days after the end of each of the Company's fiscal years and within 135 days after the end of each of the Company's fiscal years will provide the Company's stockholders with the audited financial statements of the Company as of the end of the fiscal year just completed prior thereto. Such financial statements shall be auditedthose required by Rule 14a-3 under the 1934 Act and shall be included in an annual report pursuant to the requirements of such Rule.
(y) covering The Company will take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions or other equivalent manual and to maintain its listing therein for a period of at least twelve five (125) consecutive months beginning after years from the effective date Effective Date or until such time as the Company's securities are listed on the Nasdaq National Market . Such application shall be made on an accelerated basis no more than two days following the Effective Date.
(z) On or prior to the Effective Date, the Company will give written instructions to the transfer agent for the Common Stock directing said transfer agent to place stop-order restrictions against, and appropriate legends advising of the Registration StatementLock-Up Agreements on, which shall satisfy the requirements of Section 11(a) certificates representing the securities of the Act and Rule 158(a) of Company owned by the Rules and Regulationspersons who have entered into the Lock-up Agreements.
Appears in 3 contracts
Samples: Underwriting Agreement (Protosource Corp), Underwriting Agreement (Protosource Corp), Underwriting Agreement (Protosource Corp)
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, the Company will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel and our counsel to the Underwriter the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter or dealer of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Units or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActUnderwriter, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for except that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as case the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectusrequired, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from connection with the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly Units to deliver a Prospectus nine months or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following more after the effective date of the Registration Statement, the Company will make available to its security holders upon request of and at the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date expense of the Registration StatementUnderwriter, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.amend or
Appears in 3 contracts
Samples: Underwriting Agreement (Heuristic Development Group Inc), Underwriting Agreement (Heuristic Development Group Inc), Underwriting Agreement (Heuristic Development Group Inc)
Covenants of the Company. The Company covenants and agrees with you each Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus Registration Statement to become effective and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Representative and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Representative shall not previously have been advised and furnished with a copy or to which you the Representative or your counsel to the Underwriters shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by you of the distribution of the Securities contemplated hereby (but in no event more than nine months after the Effective Date) and (B) 25 days after the Effective Date, the Company will prepare and file with the Commission, promptly upon your request, any amendments or applicable state lawsupplements to the Registration Statement or Prospectus which, in the Representative's reasonable opinion, may be necessary or advisable in connection with the distribution of the Securities. As soon as Promptly after the Representative or the Company is advised thereof, the Representative will advise the Company or the Company will advise youthe Representative, as the case may be, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-post effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop orders or other order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus preliminary prospectus or any order suspending trading in the Common Stock of the CompanyProspectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you the Underwriters copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriters and the selected dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period not to exceed nine months from the Effective Date as in the reasonable opinion of your counsel and our counsel for the Underwriters the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securitiessales by an underwriter or dealer, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the CompanyCompany or the Securities, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriters should be set forth in an amendment of to the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivereddelivered to a purchaser of the Securities, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, Act or with the Rules and Regulations or any other lawRegulations, the Company will notify the Representative promptly and forthwith prepare and furnish to you the Underwriters copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you the Underwriters may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. the Underwriters, except that in case the Underwriters are required, in connection with the sale of the Shares, to deliver a Prospectus nine months or more after the Effective Date, the Company will upon request of and at the Underwriters' expense, amend or supplement the Registration Statement and Prospectus and furnish you with reasonable quantities of prospectuses complying with Section 10(a)(3) of the Act.
(b) The Company will to the best of its ability comply with the Act, the Rules and Regulations and the Shares Exchange Act of 1934, as amended (the "Exchange Act") and applicable state securities laws so as to permit the initial offer rules and sales regulations thereunder in connection with the offering and issuance of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It . The Company will cooperate use its best efforts to qualify or register the Securities and the Option Securities and the Representative's Securities for initial sale under the securities or "blue sky" laws of such jurisdictions as you the Representative may designate have designated in writing prior to the execution hereof and will make such applications and furnish such information to counsel for the Underwriters as may be required for that purposepurpose and to comply with such laws, provided that the Company shall not be required to qualify as a foreign corporation or a dealer in securitiessecurities or to execute a general consent to service process in any jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as the Underwriter you may reasonably request. Legal fees for such qualifications shall be itemized based on the time expended and costs incurred, shall not in any event exceed $30,000.00, exclusive of filing fees (unless otherwise agreed).
(c) So The Company will instruct its transfer agent to provide the Representative with copies of the Depository Trust Company stock transfer sheets on a weekly basis for a period of six months from the First Closing Date and on a monthly basis thereafter for six additional months.
(d) The Company will use its best efforts to cause a Registration Statement under the Exchange Act to be declared effective on the Effective Date.
(e) For so long as any the Company is a reporting company under either Section 12(g), 13 or 15(d) of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the publicExchange Act, the Company, at its expense, will annually furnish to its shareholders a stockholders an annual report of its operations to include (including financial statements audited by independent public accountants), in reasonable detail and at its expense, will furnish to the Underwriter Representative during the period ending five years from the date hereof, (i) as soon as practicable after the end of each fiscal year, a balance sheet of the Company and any subsidiaries as at the end of such fiscal year, together with statements of operationsincome, shareholders' equitystockholders, equity and changes in cash flow flows of the Company for and any subsidiaries as at the end of such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent accountants; (ii) as soon as they are available, a copy of all reports (financial or other) mailed to security holders; (iii) as soon as they are available, a copy of all non-confidential reports and financial statements furnished to or filed with the Commission; and (iv) such other information of a public accountantsnature as you may from time to time reasonably request.
(df) It In the event the Company has an active subsidiary or subsidiaries, such financial statements referred to in sub-section (e) above will be on a consolidated basis to the extent the accounts of the Company and its subsidiary or subsidiaries are consolidated in reports furnished to its stockholders generally.
(g) The Company will deliver to you the Representative at or before the Initial First Closing Date three one signed copies copy of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceand of all amendments thereto. The Company will deliver to youor upon the Representative's order, from time to time until the effective date of the Prospectus, Effective Date as many copies of any Preliminary Prospectus filed with the Prospectus Commission prior to the Effective Date as you the Underwriters may reasonably request. The Company will deliver to you the Representative on the effective date of the Prospectus Effective Date and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations Act, from time to time, as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you the Underwriters may from time to time reasonably request.
(eh) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make generally available to its security holders and deliver to the Underwriter Representative as soon as it is practicable to do so, but in no event later than 90 days after the end of 12 months after its current fiscal quarter, an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Effective Date which shall satisfy the requirements of Section 11(a) of the Act Act.
(i) The Company will apply the net proceeds from the sale of the Securities substantially for the purposes set forth under "Use of Proceeds" in the Prospectus, and will 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 pursuant to Rule 158(a) 463 of the Rules and Regulations.
(j) The Company will, promptly upon the Representative's request, prepare and file with the Commission any amendments or supplements to the Registration Statement, Preliminary Prospectus or Prospectus and take any other action, which in the opinion of Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C., counsel to the Underwriters, may be reasonably necessary or advisable in connection with the distribution of the Securities and will use its best efforts to cause the same to become effective as promptly as possible.
(k) Prior to the Effective Date, the Company will use its best efforts to cause the cause the Selling Stockholders and all other Stockholders of the Company to enter into a written agreement with the Representative, which among other things shall provide that for a period of 10 and 12 months following the closing date of the offering, respectively, such stockholders will not sell, assign, hypothecate or pledge any of the securities of the Company owned by them on the Effective Date, or subsequently acquired by the exercise of any options or warrants or conversion of any convertible security of the Company held by them on the Effective Date directly or indirectly, except with the Representative's prior written consent (except for transfers during such stockholder's lifetime or on death by will or intestacy to his or her immediate family or a family trust; provided that such transferee shall agree in writing to the restrictions on transfer set forth therein). Such stockholders will permit all certificates evidencing those shares to be stamped with an appropriate restrictive legend, and will cause the transfer agent for the Company to note such restrictions on transfer books and records of the Company.
(l) The Company shall, as soon as practicable after the initial filing of the Registration Statement, make all filings required to obtain approval for the quotation of the Securities on the Nasdaq SmallCap market ("NASDAQ") and will use its best efforts to effect and maintain the aforesaid approval for at least five (5) years from the date of this Agreement. Within ten (10) days after the Effective Date, the Company shall use its best efforts to cause the Company to be listed in the Xxxxx'x OTC Industrial Manual and cause such listing to be maintained for five years from the date of this Agreement.
(m) The Company represents that it has not taken, and agrees that it will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Securities or to facilitate the sale or resale of the Securities.
(n) During the period of the offering, and for a period of twelve (12) months from the Effective Date, the Company will not sell or otherwise dispose of any securities of the Company (except for shares of Common Stock issuable pursuant to acquisitions and upon exercise of options or warrants outstanding on the Effective Date ) without your prior written consent.
(o) Prior to the Effective Date, the Company shall had retained a public relations firm reasonably acceptable to the Representative, and shall continue to retain such firm, or any alternate firm reasonably acceptable to the Representative, for a minimum period of one (1) year from the First Closing Date.
(p) The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable upon exercise of the Representative's Warrants (including securities issuable upon the exercise of the Warrants which are issuable upon the exercise of the Representative's Warrants) outstanding from time to time.
(q) The Company shall deliver to the Representative, at the Company's expense, a total of three (3) bound volumes in form and content acceptable to you, containing the Registration Statement and all exhibits filed therewith, and all amendments thereto, and all other material correspondence, filings, certificates and other documents filed and/or delivered in connection with this offering. The Company shall use its best efforts to deliver such volumes within ninety (90) days of the First Closing Date.
(r) The Company shall have acquired a reasonable amount of Director and Officer Liability Insurance (provided that such insurance can be obtained at a reasonable cost as determined by the Company and the Representative) from a responsible insurer, all satisfactory to the Representative, prior to the effectiveness of the Registration Statement. The Company shall have acquired keyman life insurance on Xxxxx Xxxxxx on the terms described in the Prospectus.
(s) Xxxxxx Xxxxxxx & Associates, Inc. shall have the right for a period of four (4) years from the First Closing Date to designate one nominee for election to the Board of Directors of the Company, such nominee to be reasonably acceptable to the Company. In the event that the Company is unable to obtain the Directors and Officers insurance described in subparagraph (r) above, Xxxxxx Xxxxxxx & Associates, Inc. shall have the right for such four (4) year period to designate a consultant to the Board of Directors of the Company, which consultant shall have the right to attend all Board and Board committee meetings and shall be compensated with respect to meetings of the Board on the same basis as outside members of the Board.
(t) The Company agrees to deliver to the Representative a financial consulting agreement whereby the Company will retain Xxxxxx Xxxxxxx & Associates, Inc. as a financial consultant for a period of two years following the First Closing Date for a fee of $3,000 per month.
(u) Each Selling Shareholder agrees to deliver to the Representative on or prior to the First 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).
Appears in 3 contracts
Samples: Underwriting Agreement (Navidec Inc), Underwriting Agreement (Navidec Inc), Underwriting Agreement (Navidec Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus that in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or 11 supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
(b) It will cooperate promptly prepare and file with the Commission, at its own expense, an amendment or supplement that will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to qualify cause the Securities and same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Option Securities and Company upon request, but at the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, which shall Statement that will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and the relevant Rules and Regulations (including, at the option of the Company, Rule 158(a158).
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act and the relevant Rules and Regulations.
(f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives at any time when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the First Closing Date four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, including documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. 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.
(g) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue
(h) During the period of five (5) years hereafter, the Company will furnish to the Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(i) During the period of 180 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Montxxxxxx Xxxurities (which consent may be withheld at the sole discretion of Montxxxxxx Xxxurities), the Company will not, other than (i) the Common Shares to be sold to the Underwriters pursuant to this Agreement and (ii) shares of Common Stock issued, or issuable upon the exercise of options granted, to employees or directors of, or consultants to, the Company (provided that any such shares of Common Stock issued or issuable upon the exercise of options are not transferable until after the expiration of such 180-day period) issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security, or file any registration statement with the Commission other than registration statements on Form S-8. For purposes of this paragraph (i), a sale, offer or other disposition shall be deemed to include any sale of Common Stock to the public in reliance on Rule 144A.
(j) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus and will file such reports with the Commission with respect to its sale of the Common Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act. The Company will invest such proceeds pending their use in such a manner that, upon completion of such investment, the Company will not be an "investment company" as defined in the Investment Company Act of 1940, as amended.
(k) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five (5) years after the date hereof.
(l) The Company will use its best efforts to designate the Common Stock for quotation as a national market system security on the Nasdaq National Market.
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(n) The Company will file Form SR in conformity with the requirements of the Act and the Rules and Regulations.
(o) The Company will not file a Form S-8 registration statement until ninety (90) days after the date of the final prospectus filed pursuant to Rule 424(b) of the Rules and Regulations.
(p) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
(q) The Company will use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the First Closing Date or the Second Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Common Shares.
(r) The Company will use its best efforts to cause all directors, officers, and other beneficial owners of shares of Common Stock to agree with Montxxxxxx Xxxurities that without the prior written consent of Montxxxxxx Xxxurities (which consent may be withheld at the sole discretion of Montxxxxxx Xxxurities), each of such holders will not, directly or indirectly, sell, offer, contract to sell, make any short sale, pledge or otherwise dispose of any shares of Common Stock (or interest therein or right thereto) that such person, directly or indirectly, beneficially owns or may in the future beneficially own for a period of 180 days following the commencement of the public offering of the Firm Common Shares by the Underwriters. A person shall be deemed to beneficially own shares of Common Stock that are issuable upon the exercise of options, warrants or other rights to acquire Common Stock on or before 180 days following the commencement of the public offering of the Common Shares by the Underwriters.
(s) 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 and the
Appears in 3 contracts
Samples: Underwriting Agreement (8x8 Inc), Underwriting Agreement (8x8 Inc), Underwriting Agreement (8x8 Inc)
Covenants of the Company. The Company covenants and agrees with you thatas follows:
(a) It will cooperate shall have notified you immediately and confirmed the notice in all respects in making writing (i) when the Prospectus effective Registration Statement and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel thereto shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofbecome effective, the Company will advise you, and confirm the advice in writing, (ii) of the receipt of any comments of from the Commission or any state securities department, when with respect to the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponStatement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (iii) of any post-effective request by the Commission for any amendment to the Registration Statement or Prospectus, any amendment or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect relating thereto, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance by the Commission of any such stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest possible moment.
(b) It will deliver to you, as soon as possible available, two signed copies of the lifting or dismissal thereof. The Company has caused Registration Statement as originally filed and of each amendment thereto and two sets of the exhibits thereto, and will also deliver to you such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto (without exhibits) as you shall require for the purposes contemplated by the Act.
(c) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time during the period when the Prospectus is required to be delivered to you copies under the Act, such number of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with (as amended or supplemented) as you may reasonably request for the sale of purposes contemplated by the Securities, Act or the Option Securities and Regulations.
(d) During the Representative's Securities for such period as in when the opinion of your counsel and our counsel the use thereof Prospectus is required to comply be delivered pursuant to the Act, the Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in, the Securities during such period in accordance with the applicable provisions of the Act herein and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment the Prospectus.
(e) If any event relating to or affecting the Company or the Mortgages Loans shall occur as a result of which it is necessary to amend or a supplement to 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 subscriber, the Company will forthwith prepare and furnish to you, without expense to you, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Prospectus which will amend or supplement the Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under delivered to a subscriber, not misleading. For the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, purposes of this subsection the Company will forthwith prepare and furnish such information with respect to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities themselves as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may time reasonably request.
(cf) So It will make generally available to the Company's security holders (i.e., the holders of Shares) as soon as practicable, but not later than 120 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, which need not be certified by independent public accountants unless required by the Act or the Regulations) covering the twelve-month period beginning not later than the first day of the Company's fiscal quarter following the effective date of the Registration Statement. As used in this subsection, the terms "earnings statement" and "made generally available to the Company's security holders" shall have the meanings contained in Rule 158 promulgated under the Act.
(g) It will, so long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in outstanding, furnish directly to you the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter following:
(i) as soon as practicable after the end of each fiscal year, one copy of the Company's annual report, including therein the accountants' report, the balance sheet, the related statements of profit and loss and cash flows for the Company (which need not be audited), together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such fiscal yearperiod, setting forth in reasonable detail its financial position, together with related statements of operationsprofit and loss and cash flows, shareholders' equitynone of which statements need be audited, and changes in cash flow but shall be certified as correct by the Chief Financial Officer of the Company;
(iii) copies of any report, application or documents which the Company for such fiscal yearshall file with the Commission; and
(iv) as soon as the same shall be sent to holders of Shares, all in reasonable detail and accompanied by a copy each communication which shall be sent to the holders of Shares, including any other annual or interim report of the certificate or report thereon of independent public accountantsCompany.
(dh) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectustime, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter all supplemental sales material (whether designated solely for so long as a Prospectus is required broker-dealer use or otherwise) proposed to be used or delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without Company in connection with the prior written consent offering of the UnderwriterSecurities.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 3 contracts
Samples: Managing Dealer Agreement (Capital Alliance Income Trust Real Estate & Investment Trus), Managing Dealer Agreement (Capital Alliance Income Trust Real Estate & Investment Trus), Managing Dealer Agreement (Capital Alliance Income Trust Real Estate & Investment Trus)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate (i) use its best efforts to cause the Registration Statement to become effective or, if the procedure in all respects Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in making a form approved by the Prospectus effective Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and will Regulations, and (ii) not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Representative shall not previously have been advised and furnished with a copy or to which you or your counsel the Representative shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Regulations.
(b) The Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, Representative promptly (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to thereto shall have become effective, (ii) of receipt of any comments from the Commission, (iii) of any request of the Commission for amendment of the Registration Statement or Prospectus, or the filing of any for supplement to the Prospectus or for any amended Prospectusadditional information, and (iv) of any request made the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any the Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. if issued.
(c) The Company will prepare and file cooperate with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Representative in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate endeavoring to qualify the Securities and the Option Securities and the Representative's Securities Units for initial sale under the securities laws of such jurisdictions as you the Representative may designate reasonably have designated in writing and will make such applications applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securitiesany 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 statements, reports, and reports other documents, as are or may be required to continue such qualification qualifications in effect for so long a period as the Underwriter Representative may reasonably request.
(c) So long as any request for distribution of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsUnits.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to youto, or upon the order of, the Representative, from time to time until the effective date of the Prospectustime, as many copies of the any Preliminary Prospectus as you the Representative may reasonably request. The Company will deliver to you on to, or upon the effective date order of, the Representative during the period when delivery of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations Act, as many copies of the Prospectus, Prospectus in final form, or as thereafter amended or supplemented, as you the Representative may from time reasonably request. The Company will deliver to time the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representative may reasonably request.
(e) The Company will apply comply with the net proceeds from Act and the sale Rules and Regulations, and the Exchange Act, and the rules and regulations of the Securities Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion If during the period in which a prospectus 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 proceeds shall be usedCompany or in the reasonable opinion of counsel to the Underwriters, directly it becomes necessary to amend or indirectlysupplement the Prospectus in order to make the statements therein, to acquire any securities issued by in the Company, without the prior written consent light of the Underwritercircumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time the Prospectus is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) As The Company will make generally available to its security holders, as soon as it is practicablepracticable to do so, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following 15 months after the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Representative copies of annual reports and copies of all other documents, reports and information furnished by the Company 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 Representative 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; provided, however, that to the extent such documents, reports and information are filed via XXXXX, such documents, reports and information shall be deemed to have been delivered hereunder.
(h) The Company will make 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 derivatives of Common Stock (or agreement therefor), directly or indirectly, for a period of ninety days after the date of this Agreement otherwise than hereunder, or pursuant to contractual obligations existing on the date hereof or pursuant to employee benefit plans in effect on the date hereof, or with the prior written consent of the Representative, which consent will not be unreasonably withheld.
(i) The Company will use its best efforts to list, subject to notice of issuance of the Units, the Common Stock and the Warrants on the AMEX and to cause such listing to remain in effect with respect to each such security unless and until (i) such security expires; (ii) such security is listed on another exchange of at least comparable reputation; or (iii) the Company is no longer required to file reports under Section 12 of the Exchange Act.
(j) The Company has caused each officer and director and each person who owns, beneficially or of record, shares of the Common Stock constituting 5% or more of the Common Stock outstanding immediately prior to the date hereof 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 (“Lockup Agreements”), pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock or derivatives of Common Stock 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) for a period of ninety days after the date of this Agreement, directly or indirectly, except with the prior written consent of the Representative.
(k) The Company shall apply the net proceeds of its sale of the Units as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(l) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Units in such a manner as would require the Company to register as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”).
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock, and shall comply with the provisions of the Warrant Agreement with respect to the appointment and maintenance of a Warrant Agent for the Warrants.
(n) 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.
Appears in 3 contracts
Samples: Underwriting Agreement (Path 1 Network Technologies Inc), Underwriting Agreement (Path 1 Network Technologies Inc), Underwriting Agreement (Path 1 Network Technologies Inc)
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement, if not effective prior to the execution and delivery of this Agreement, to become effective. If the Registration Statement has been declared effective prior to the execution and delivery of this Agreement, the Company will file the Prospectus effective with the Commission pursuant to and in accordance with Rule 424(b) within the time period required under Rule 424(b) under the Securities Act. The Company will advise the Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Company will not at any timefile with the Commission the Prospectus or the amendment referred to in Section 1(a) hereof, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with or any amendment to the Registration Statement unless the Underwriter has received a copy of and has had a reasonable period of time to review any such proposed amendment or supplement and consented to which you the filing thereof and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon the reasonable request of the Underwriter or your counsel shall have reasonably objected or which is not in material compliance with for the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofUnderwriter, 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 amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriter 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 or supplement to the Prospectus with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. The Company will advise youthe Underwriter, 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 or any amendment or supplement thereto has been filed and will provide evidence to the Underwriter of each such filing or effectiveness.
(c) The Company will advise the Underwriter promptly, and confirm the such advice in writing, after receiving notice or obtaining knowledge of the receipt of any comments of the Commission or any state securities department, (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectusis filed with the Commission, (ii) the receipt of any comments from the Commission concerning the Registration Statement, (iii) when any post-effective amendment to the Registration Statement becomes effective, or the filing of when any supplement to the Prospectus or any amended ProspectusProspectus has been filed, of any request made (iv) the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any order suspending trading in the Common Stock of the Companyamendment or supplement thereto, or of (v) the suspension of the qualification of the Securities, the Option Securities Shares for offer or the Representatives Securities for offering sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings proceeding for any such purposespurpose or (vi) any request made by the Commission or any securities authority of any other jurisdiction for amending the Registration Statement, and for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if any such stop order or suspension is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use withdrawal thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file .
(d) If the Prospectus (in form and substance satisfactory delivery of a prospectus relating to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus Shares is required under the Securities Act at any time prior to be delivered in connection with the initial sale expiration of nine months after the date of the Securities, the Option Securities Prospectus and the Representative's Securities of if at such time any event events have occurred as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not as then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any supplemented would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if for any reason it is necessary during such same period to amend or supplement the Prospectus, the Company will promptly notify the Underwriter and furnishing of any such upon the Underwriter’s 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 supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of omission or effects such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, compliance and will furnish without charge to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes to any dealer in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, securities as many copies of the such amended or supplemented Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(e) The Company will apply furnish such information as may be required and otherwise to cooperate in qualifying the net proceeds from Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as you may designate and to maintain such qualifications in effect so long as you may request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Securities Shares); and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion to promptly advise you of the proceeds shall be used, directly or indirectly, to acquire any securities issued receipt by the Company, without Company of any notification with respect to the prior written consent suspension of the Underwriterqualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. In each jurisdiction where any of the Shares shall have been qualified as provided above, the Company will file such reports and statements as may be required to continue such qualification for a period of not less than one (1) year from the date of this Agreement.
(f) As Upon request, the Company will make available to the Underwriter in Baltimore, Maryland, without charge and as soon as it is practicablepracticable after the Registration Statement becomes effective, but in any event not later than the first (lst) day and thereafter from time to time, as many copies of the fifteenth Prospectus (15th) full calendar month following or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriter may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; in case the Underwriter is required to deliver a prospectus after the nine-month period referred to in Section 10(a)(3) of the Securities Act in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(g) As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its security holders and the Underwriter shareholders an earnings statement (which need not be audited) of the Company and its Subsidiaries covering a period of at least twelve (12) consecutive 12 months beginning after the effective date of the Registration Statement, Statement (which shall satisfy the requirements of need not be audited) complying with Section 11(a) of the Securities Act and Rule 158(athe rules and regulations thereunder. “Availability Date” means the forty-fifth (45th) day after the end of the Rules and Regulationsfourth fiscal quarter following the fiscal quarter in which the Registration Statement went effective, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the ninetieth (90th) day after the end of such fourth fiscal quarter.
Appears in 2 contracts
Samples: Underwriting Agreement (Benthos Inc), Underwriting Agreement (Benthos Inc)
Covenants of the Company. The Company covenants and agrees with you thatthe Underwriter as follows:
(a) It The Company will cooperate in all respects in making endeavor to cause the Prospectus Registration Statement to become effective and will not at any timeadvise you promptly and, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise if requested by you, and will confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponeffective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective amendment request by the Commission for amendments or supplements to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, Registration Statement or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6(e) below, of the institution happening of any proceedings for event that makes any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as statement made in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments Registration Statement or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain ) untrue in any untrue statement material respect or that requires the making of a material fact any addition to or omit change in the Registration Statement or the Prospectus (as then amended or supplemented) to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light or of the circumstances under which they are made. The preparation and furnishing of any such amendment necessity to amend or supplement to the Prospectus (as then amended or supplement supplemented) to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, Securities Act or any other law. If at any time the Exchange Act and applicable state securities laws so as to permit Commission shall issue any stop order suspending the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you shall not have been advised previously or to which you shall reasonably object in writing promptly after being so advised.
(d) On the effective date of the Registration Statement and thereafter from time to time, for such period as in the opinion of counsel for the Underwriter a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, the Company will deliver to you and each dealer through whom Shares may be sold without charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers through whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company at its own expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each dealer through whom Shares may be sold without charge (except as provided below), a reasonable number of copies thereof.
(e) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(f) The Company will make generally available to its security holders and the Underwriter an earnings statement (statement, which need not be audited) , covering a 12-month period of at least twelve (12) consecutive months beginning commencing after the effective date of the Registration StatementStatement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and any applicable regulation, including Rule 158(a158 under the Securities Act.
(g) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Rules Company mailed to shareholders or filed with the Commission and Regulations(ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(h) The Company will use its best efforts to have the Shares qualified for listing on the NASDAQ Global Market, subject to official notice of issuance of the Shares being sold by the Company, immediately after the Closing Date or as soon as practicable thereafter and, upon such issuance, the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Global Market issuers.
Appears in 2 contracts
Samples: Underwriting and Advisory Agreement (Waccamaw Bankshares Inc), Underwriting and Advisory Agreement (Waccamaw Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with you thatthe Underwriter as follows:
(a) It The Company will cooperate in all respects in making endeavor to cause the Prospectus Registration Statement to become effective and will not at any timeadvise you promptly and, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise if requested by you, and will confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponeffective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective amendment request by the Commission for amendments or supplements to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, Registration Statement or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6(e) below, of the institution happening of any proceedings for event that makes any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as statement made in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments Registration Statement or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain ) untrue in any untrue statement material respect or that requires the making of a material fact any addition to or omit change in the Registration Statement or the Prospectus (as then amended or supplemented) to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light or of the circumstances under which they are made. The preparation and furnishing of any such amendment necessity to amend or supplement to the Prospectus (as then amended or supplement supplemented) to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Exchange Act and applicable state securities laws so as Company will make every reasonable effort to permit obtain the initial offer and sales withdrawal of such order at the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsearliest possible time.
(b) It The Company will cooperate furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to qualify it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Securities Registration Statement (without exhibits) as originally filed and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions each amendment thereto as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as The Company will not file any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish amendment to the Underwriter as soon as practicable Registration Statement or make any amendment or supplement to the Prospectus of which you shall not have been advised previously or to which you shall reasonably object in writing promptly after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsbeing so advised.
(d) It will deliver Prior to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company has delivered or will make available deliver to its security holders you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the Underwriter an earnings statement (which need not and by selected dealers to whom Units may be audited) covering a period of at least twelve (12) consecutive months beginning after sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the effective date of the Registration Statement and thereafter from time to time, for such period as in the opinion of counsel for the Underwriter a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, the Company will deliver to you and each dealer through whom Units may be sold without charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the Underwriter and by selected dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company at its own expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each dealer through whom Units may be sold without charge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Units for offer and sale by you and by selected dealers through whom Units may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Units, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and any applicable regulation, including Rule 158(a158 under the Securities Act.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Rules Company mailed to shareholders or filed with the Commission and Regulations(ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(i) The Company will use its best efforts to have the Series B Preferred Stock and Warrants qualified for listing on the NASDAQ Global Market, subject to official notice of issuance of the Series B Preferred Stock and Warrants being sold by the Company, immediately after the Closing Date or as soon as practicable thereafter and, upon such issuance, the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Global Market issuers.
Appears in 2 contracts
Samples: Underwriting and Advisory Agreement (Waccamaw Bankshares Inc), Underwriting and Advisory Agreement (Waccamaw Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with you thatas follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which notify you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, immediately and confirm the advice notice in writingwriting (i) when the Registration Statement and any amendment thereto shall have become effective, (ii) of the receipt of any comments of from the Commission or any state securities department, when with respect to the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponStatement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (iii) of any post-effective request by the Commission for any amendment to the Registration Statement or Prospectus, any amendment or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect relating thereto, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance by the Commission of any such stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest possible moment.
(b) It will give you notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Agent in connection with the offering of the Units which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or supplement a reasonable 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 use any such prospectus to which you shall reasonably object in writing.
(c) It will deliver to you, as soon as possible available, one signed copy of the lifting or dismissal thereof. The Company has caused Registration Statement as originally filed and of each amendment thereto and one set of exhibits thereto.
(d) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time during the period when the Prospectus is required to be delivered to you copies under the Act, such number of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with (as amended or supplemented) as you may reasonably request for the sale purposes contemplated by the Act or the Regulations, and such number of copies of the Securities, the Option Securities Subscription Agreement and the Representative's Securities for such LLC Agreement as you may reasonably request.
(e) During the period as in when the opinion of your counsel and our counsel the use thereof Prospectus is required to comply be delivered pursuant to the Act, the Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in, the Units during such period in accordance with the applicable provisions herein and as set forth in the Prospectus.
(f) If any event relating to or affecting the Company shall occur as a result of which it is necessary, in your view, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Act and circumstances existing at the Rules and Regulations. The time it is delivered to a subscriber, the Company will forthwith prepare and file with the statesfurnish to you, promptly upon your requestwithout expense to you, any such a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to the Prospectusto, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriteryou) which amend or transmit supplement the Prospectus by so that as amended or supplemented it will not contain an untrue statement of a means reasonably calculated material fact or omit to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as state a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus material fact necessary in order to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under delivered to a subscriber, not misleading. For the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other lawpurposes of this Section 3(f), the Company will forthwith prepare and furnish such information with respect to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities themselves as you may from time to time reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(bg) It will cooperate comply with all applicable registration, filing and reporting requirements of the Exchange Act.
(h) It will endeavor in good faith, in cooperation with you, to qualify the Securities Units for offering and the Option Securities and the Representative's Securities for initial sale under the applicable securities or "blue sky" laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for designate; provided, however, that purpose, provided the Company shall not be required obligated to file any general consent to service of process or to qualify to do business or to qualify as a foreign corporation or a dealer in securitiessecurities in any jurisdiction in which it is not so qualified. The It will give you notice of any correspondence received from any state securities commission regarding the Offering and will give you notice of its intention to file, or prepare for filing, any materials related to the Offering with any state securities commission; it will furnish you copies of any of the foregoing promptly upon receipt or prior to filing, as applicable, and will not file any such materials to which you shall reasonably object in writing. In each jurisdiction where the Units shall have been qualified as above provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ci) So long It will make generally available to the Company's security holders (i.e., the holders of Units) as any soon as practicable, but not later than 120 days after the close of the Securitiesperiod covered thereby, the Option Securities or the Representative's Securities remain outstanding in the hands an earnings statement of the publicCompany (in form complying with the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited which need not be certified by independent public accountantsaccountants unless required by the Act or the Regulations) covering the twelve-month period, or such earlier period since the Company's inception, beginning not later than the first day of the Company's fiscal quarter following the effective date of the Registration Statement. As used in this subsection, the terms "earnings statement" and will furnish "made generally available to the Underwriter Company's security holders" shall have the meanings contained in Rule 158 promulgated under the Act.
(j) It will for a period of two years following the Offering Termination Date or the earlier expiration or termination of this Agreement pursuant to Section 10 below, furnish directly to you the following:
(i) as soon as practicable after the end of each fiscal year, one copy of the Company's annual report, including therein the accountants' report, the balance sheet, the related statements of profit and loss and cash flows for the Company, together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such fiscal yearperiod, setting forth in reasonable detail its financial position, together with related statements of operationsprofit and loss and cash flows, shareholders' equitynone of which statements need be audited, and changes in cash flow but shall be certified as correct by the Company;
(iii) copies of any report, application or document which the Company shall file with the Commission; and
(iv) as soon as the same shall be sent to holders of Units, each communication which shall be sent to the holders of Units, including any other annual or interim report 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 accountantsCompany.
(dk) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectustime, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter all supplemental sales material (whether designated solely for so long as a Prospectus is required broker-dealer use or otherwise) proposed to be used or delivered under by the Act and Company in connection with the Rules and Regulations as many copies offering of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestUnits.
(el) The Company It intends to source funds and to use funds in the manner specified in the Prospectus.
(m) It will apply use the net proceeds received by it from the sale of the Securities and the Option Securities substantially Units being sold by it in the manner set forth under "Use of Proceeds" specified in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fn) As soon as it is practicable, but It will maintain adequate books and records setting forth a true and accurate account of all business transactions arising out of and in any event not later than connection with the first (lst) day conduct of the fifteenth (15th) full calendar month following Company. You or your designated representative shall have the effective date right, at any reasonable time, to have access to and inspect and copy the contents of the Registration Statement, the Company will make available to its security holders such books and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationsrecords.
Appears in 2 contracts
Samples: Agency Agreement (Oregon Trail Ethanol Coalition LLC), Agency Agreement (Oregon Trail Ethanol Coalition LLC)
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to be declared effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise the Underwriter and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you the Underwriter or your its counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have been declared effective) and (B) 25 days after the date on which the Registration Statement shall have been declared effective, the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or applicable state lawsupplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise youthe Underwriter, and confirm provide the advice in writingUnderwriter with copies of any written advice, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for an amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you the Underwriter copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.has
Appears in 2 contracts
Samples: Underwriting Agreement (SCNV Acquisition Corp), Underwriting Agreement (SCNV Acquisition Corp)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus effective Registration Statement and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. WSI will have the opportunity to review and approve the Registration Statement and any amendment thereto. The Company will promptly advise you, and confirm the advice WSI in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectus, after it becomes effective) or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective) or the Prospectus and of which WSI has not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which WSI reasonably objects or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your WSI's request, any such amendments amendment or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, WSI's judgment may be necessary or advisable in connection with to enable WSI to continue the initial sale distribution of the SecuritiesCommon Shares, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. In addition, the Company will assist WSI in connection with WSI's filings with the NASD. The Company shall file covenants that it will not commence the Prospectus offering until such time as WSI has received any required approvals from the NASD.
(in form and substance satisfactory to the Underwriterc) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise WSI thereof and applicable state securities lawswill promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case WSI is required to deliver a prospectus after such nine-month period, the Company upon request, but at the expense of WSI, will promptly prepare 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.
(bd) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and will timely file such statements and reports pursuant to the Exchange Act as are or may be required necessary in order to continue such qualification in effect make generally available to its security holders as soon as practicable an earnings statement for so long as the Underwriter may reasonably requestpurposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(ce) So long During such period as any of the Securities, the Option Securities or the Representative's Securities remain outstanding a prospectus is required by law to be delivered in the hands of the publicconnection with sales by WSI, the Company, at its expense, will annually furnish but only for the nine-month period referred to its shareholders a report in Section 10(a)(3) of its operations to include financial statements audited by independent public accountantsthe Act, and will furnish to WSI or mail to the Underwriter as soon as practicable after the end order of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed WSI copies of the signature pages to the Registration Statement and three copies the Prospectus and all amendments and supplements to any such documents, in each case as soon as available and in such quantities as WSI may request, for the purposes contemplated by the Act.
(f) The Company shall qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky securities law of North Carolina, will comply with such law and will continue such qualification, registration and exemption in effect so long as reasonably required for the distribution of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceCommon Shares. The Company will deliver to you, from time to time until the effective date advise WSI promptly of the Prospectus, as many copies suspension of the Prospectus as you may reasonably request. The Company will deliver to you on qualification or registration of (or any such exemption relating to) the effective date Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the Prospectus and thereafter for so long as a Prospectus is required issuance of any order suspending such qualification, registration or exemption, the Company, with WSI's cooperation, will use its best efforts to be delivered under obtain the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestwithdrawal thereof.
(eg) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities Common Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion WSI may, in its sole discretion, waive in writing the performance by the Company of any one or more of the proceeds shall be used, directly foregoing covenants or indirectly, to acquire any securities issued by extend the Company, without the prior written consent of the Underwritertime for their performance.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 2 contracts
Samples: Broker Dealer Agreement (United Community Banks Inc), Broker Dealer Agreement (United Community Banks Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a) (3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities lawswill promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Company upon request, but at the expense of such Underwriter, will promptly prepare 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.
(bd) It The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a) (3) of the Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Securities and the Option Securities and the Representative's Securities Common Shares for initial sale under (or obtain exemptions from the application of) the Blue Sky or Canadian securities laws of such jurisdictions as you may designate designate, will comply with such laws and will make continue such applications qualifications, registrations and furnish such information exemptions in effect so long as may be reasonably required for that purpose, provided the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securitiesany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any will advise you promptly of the Securitiessuspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, the Option Securities sale or the Representative's Securities remain outstanding trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the hands event of the publicissuance of any order suspending such qualification, registration or exemption, the Company, at its expensewith your cooperation, will annually furnish use its best efforts to its shareholders a report obtain the withdrawal thereof.
(g) During the period of its operations to include financial statements audited by independent public accountantsfive years hereafter, and the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, a copies of the Annual Report of the Company containing the balance sheet of the Company as at of the end close of such fiscal year, together with year and statements of operationsincome, shareholders' equityequity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and changes in cash flow (iii) as soon as available, copies of any report or communication of the Company for such fiscal year, all in reasonable detail and accompanied by a copy mailed generally to holders of the certificate or report thereon of independent public accountantsits Common Stock.
(dh) It will deliver to you at or before During the Initial Closing Date three signed copies period of 180 days after the first date that any of the signature pages Common Shares are released by you for sale to the Registration Statement public, without the prior written consent of Montxxxxxx Xxxurities (which consent may be withheld at the sole discretion of Montxxxxxx Securities), the Company will not other than pursuant to outstanding stock options and three copies warrants disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the registration statement including all financial statements and exhibits filed therewith, whether Company's equity securities or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, any other securities convertible into or as thereafter amended exchangeable with its Common Stock or supplemented, as you may from time to time reasonably requestother equity security.
(ei) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities Common Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fj) As soon as it is practicable, but The Company will use its best efforts to qualify or register its Common Stock for sale in any event not later than non- issuer transactions under (or obtain exemptions from the first (lstapplication of) day the Blue Sky laws of the fifteenth State of California (15th) full calendar month following and thereby permit market making transactions and secondary trading in the effective date of the Registration StatementCompany's Common Stock in California), the Company will make available to its security holders comply with such Blue Sky laws and the Underwriter an earnings statement (which need not be audited) covering will continue such qualifications, registrations and exemptions in effect for a period of at least twelve (12) consecutive months beginning five years after the effective date hereof.
(k) The Company will use its best efforts to designate the Common Stock for quotation as a national market system security on The Nasdaq Stock Market. You, on behalf of the Registration StatementUnderwriters, which shall satisfy may, in your sole discretion, waive in writing the requirements performance by the Company of Section 11(a) any one or more of the Act and Rule 158(a) of foregoing covenants or extend the Rules and Regulationstime for their performance.
Appears in 2 contracts
Samples: Underwriting Agreement (Suburban Lodges of America Inc), Underwriting Agreement (Suburban Lodges of America Inc)
Covenants of the Company. The (a) Conduct of Business by the Company. During the period from the date of this Agreement and continuing until the Effective Time, the Company covenants agrees as to itself and agrees its Subsidiaries that (except as expressly contemplated or permitted by this Agreement, including the Company Disclosure Schedules, or required by applicable law or by a Governmental Entity of competent jurisdiction or to the extent that Parent shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed) the Company and its Subsidiaries shall carry on their respective businesses in the ordinary and usual course of business, consistent with you thatpast practice and in compliance with all applicable laws and regulations and, to the extent consistent therewith, use reasonable best efforts to preserve intact their respective current business organizations, use reasonable best efforts to keep available the services of their respective current directors, officers, employees, independent contractors and consultants and preserve their relationships with those persons, customers, suppliers and vendors having business dealings with each of them to the end that their respective goodwill and ongoing business shall be unimpaired at the Effective Time and without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to Article VII hereof or the Effective Time, except as expressly contemplated or permitted by this Agreement, including the Company Disclosure Schedules, or as required by applicable law or a Governmental Entity of competent jurisdiction or to the extent that Parent shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, the Company shall not, and shall cause its Subsidiaries not to,:
(ai) It will cooperate (A) declare, set aside or pay any dividends on, or make any other distributions in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus respect of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the capital stock of The Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities departmentof its Subsidiaries, when the Registration Statement becomes effective if the provisions (B) split, combine or reclassify capital stock of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus The Company or any amended Prospectus, of any request made by the Commission its Subsidiaries or any state securities department for amendment of the Prospectus issue or for supplementing of the Prospectus or for additional information with respect thereto, of authorize the issuance of any stop order suspending the effectiveness other securities in respect of, in lieu of the Prospectus or in substitution for shares of capital stock of The Company or any order preventing of its Subsidiaries, (C) purchase, redeem or suspending otherwise acquire any shares of capital stock or any other securities of The Company or any of its Subsidiaries, (D) pay or set aside a "sinking fund" for the use payment of any Prospectus principal amount of outstanding debt securities of The Company or any order suspending trading in of its Subsidiaries, or (E) consummate or enter into an agreement to recapitalize The Company or any of its Subsidiaries;
(ii) issue, deliver, sell, transfer, pledge or otherwise encumber or subject to any Lien any shares of capital stock of The Company or any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants, options or calls to acquire, any capital stock of The Company or any of its Subsidiaries;
(iii) amend the Common Stock Company Certificate of Incorporation, the Company By-Laws or any similar governing documents of any Subsidiary of the Company;
(iv) reincorporate the jurisdiction of the Company from State of Delaware;
(v) merge, consolidate or reorganize the Company or any of its Subsidiaries with any other person (other than the Merger of Merger Sub with and into the Company);
(vi) form, join, participate or agree to form, join or participate in the business, operations, sales, distribution, or development of any other person or contribute assets, employees, cash or customers or other resources to any such arrangement, other than in the ordinary course of business consistent with past practices;
(vii) acquire or agree to acquire by merging or consolidating with, or by purchasing assets of, or by any other manner, any business or any person, other than purchases of raw materials or supplies in the ordinary course of business consistent with past practice;
(viii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, other than sale of inventories and other Hydrocarbons in the ordinary course of business consistent with past practices;
(ix) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities, warrants, calls or other rights to acquire any debt securities of the suspension Company or any of its Subsidiaries or any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the qualification foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(x) make, commit or otherwise agree to make any capital expenditure or expenditures, or enter into any agreement or agreements providing for payments which, individually, are in excess of $3 million or, in the aggregate, are in excess of $5 million;
(xi) settle or compromise or agree to settle or compromise any Tax liability or make any Tax election;
(xii) pay, discharge, settle or satisfy any material claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practices;
(xiii) enter into, adopt or amend in any material respect or terminate any benefit plan or similar policy or agreement involving the Company or any of its Subsidiaries and one or more of their respective directors, officers, employees or agents;
(xiv) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not materially increase benefits or compensation expenses of the SecuritiesCompany or its Subsidiaries, or by the Option Securities terms of any employment agreement or other arrangement in existence on the Representatives Securities for offering date hereof which have been set forth on the Company Disclosure Schedule, increase the compensation of any director, officer, employee or agent of or consultant to the Company or its Subsidiaries or pay any benefit or amount not required by a plan or arrangement as in effect on the date of this Agreement to any such person;
(xv) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Intellectual Property of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practice;
(xvi) change in any jurisdictionrespect its method of Tax accounting or Tax practice, or its accounting policies, methods or procedures;
(xvii) enter into any agreement with any director, officer, employee or stockholder of the institution of any proceedings for any such purposesCompany or its Subsidiaries or amend, modify or change the terms and will use its best efforts to prevent the issuance conditions of any such order andagreement;
(xviii) modify, if issuedamend, alter or change terms, provisions or rights and obligations of any Company Material Agreement;
(xix) take any action or omit to take any action which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company;
(xx) take any action or omit to take any action which would reasonably be expected to materially delay or materially adversely affect the ability of any of the parties to obtain any approval of any Governmental Entity required to consummate the transactions contemplated hereby;
(xxi) take any action that would prevent or impede the Merger from qualifying as soon as possible a reorganization under the lifting or dismissal thereof. The Company has caused to be delivered to you copies provisions of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies Section 368(a) of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required Code or fail to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in action necessary to permit the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts Merger to qualify as such a reorganization;
(xxii) take any action that would cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form representations and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be warranties set forth in an amendment of or a supplement Section 3.2 hereof to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to no longer be deliveredtrue and correct;
(xxiii) authorize, or in case it shall be necessary commit or agree to amend or supplement the Prospectus to comply with the Acttake, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsforegoing actions.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making The Company shall use its best efforts to cause the Prospectus Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before the termination of the offering of Securities to the public by the Underwriters of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act, the Exchange Act and the Rules and Regulations or applicable state law. .
(b) As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. .
(c) The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Representatives' Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. .
(d) The Company shall file the Prospectus (in form and substance satisfactory to the UnderwriterRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. .
(e) In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Representatives' Securities of any event of which the Company has knowledge and which materially affects the CompanyCompany or the Acquisition Companies, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, each such amended Prospectus or supplement to be satisfactory to you and your counsel, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. .
(f) The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(bg) It The Company will cooperate to qualify the Initial Securities and the Option Securities and the Representative's Representatives' Securities for initial sale under the securities laws of such jurisdictions as you may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution contemplated hereby and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter Representatives may reasonably request.
(ch) So long as any of the Initial Securities, the Option Securities or the Representative's Representatives' Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders stockholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter Representatives as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholdersstockholders' equity, and changes in 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.
(di) It The Company will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(ej) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the UnderwriterRepresentatives.
(fk) As soon as it is practicable, but in any event not later than the first (lst1st) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter Representatives an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
(l) Non-Accountable Expense Allowance and other Costs and Expenses. The Company shall pay to the Representatives at each closing date, and to be deducted from the purchase price for the Securities an amount equal to three percent (3%) of the gross proceeds received by the Company from the sale of the Securities at such closing date less, in the case of the Initial Closing Date, the sum of $50,000 previously paid by the Company to Xxxxxxxxx Securities, Inc. If the sale of the Securities by the Representatives is not consummated for any reason not attributable to the Representatives, including if this Agreement is terminated by the Underwriters in accordance with the provisions of SECTION 5 or SECTION 9(a), or if (i) the Company unilaterally withdraws the Registration Statement or does not proceed with the public offering for reasons other than the affirmative wrongdoing of the Representatives, or (ii) the representations in SECTION 3 hereof are not correct or the covenants cannot be complied with, or (iii) there has been a materially adverse change in the condition, prospects or obligations of the Company or a materially adverse change in stock market conditions from current conditions, all as determined by the Representatives, then the Company shall reimburse the Representatives for its out of pocket expenses including without limitation, its legal fees and disbursements all on a non-accountable basis.
Appears in 2 contracts
Samples: Underwriting Agreement (Bizness Online Com), Underwriting Agreement (Bizness Online Com)
Covenants of the Company. The Company covenants and agrees with you thatthe Underwriter as follows:
(a) It The Company will cooperate in all respects in making endeavor to cause the Prospectus Registration Statement to become effective and will not at any timeadvise you promptly and, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise if requested by you, and will confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponeffective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective amendment request by the Commission for amendments or supplements to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, Registration Statement or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6(e) below, of the institution happening of any proceedings for event that makes any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as statement made in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments Registration Statement or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain ) untrue in any untrue statement material respect or that requires the making of a material fact any addition to or omit change in the Registration Statement or the Prospectus (as then amended or supplemented) to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light or of the circumstances under which they are made. The preparation and furnishing of any such amendment necessity to amend or supplement to the Prospectus (as then amended or supplement supplemented) to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Exchange Act and applicable state securities laws so as Company will make every reasonable effort to permit obtain the initial offer and sales withdrawal of such order at the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsearliest possible time.
(b) It The Company will cooperate furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to qualify it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Securities Registration Statement (without exhibits) as originally filed and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions each amendment thereto as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as The Company will not file any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish amendment to the Underwriter as soon as practicable Registration Statement or make any amendment or supplement to the Prospectus of which you shall not have been advised previously or to which you shall reasonably object in writing promptly after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsbeing so advised.
(d) It will deliver Prior to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company has delivered or will make available deliver to its security holders you, without charge, in such quantities as you have requested or may XxXxxxxx & Company, Inc. July , 2006 hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter an earnings statement (which need not and by selected dealers to whom Shares may be audited) covering a period of at least twelve (12) consecutive months beginning after sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the effective date of the Registration Statement and thereafter from time to time, for such period as in the opinion of counsel for the Underwriter a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, the Company will deliver to you and each dealer through whom Shares may be sold without charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers through whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company at its own expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each dealer through whom Shares may be sold without charge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and Rule 158(aany applicable regulation. XxXxxxxx & Company, Inc. July , 2006
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Rules Company mailed to shareholders or filed with the Commission and Regulations(ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 2 contracts
Samples: Underwriting and Advisory Agreement (Hampton Roads Bankshares Inc), Underwriting and Advisory Agreement (Hampton Roads Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with you thatthat it will:
(a) It will cooperate in all respects in making Use its best efforts to cause the Registration Statement to become effective as promptly as possible. If filing of the Prospectus effective and will not at any time, whether before or after is required under Rule 424(b) of the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofAct, the Company will advise youfile the Prospectus, properly completed, pursuant to Rule 424(b) of the Act within the time period prescribed and confirm will provide evidence satisfactory to the advice in writingPlacement Agent of such timely filing.
(b) Notify the Placement Agent immediately by facsimile (i) when the Registration Statement and any post-effective amendment thereto become effective, (ii) of the receipt of any comments of from the Commission or any the blue sky or state securities department, when authority of any jurisdiction regarding the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponStatement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to thereto, the Registration Statement or Prospectus, or any amendment or supplement thereto, and (iii) of the filing receipt of any supplement notification with respect to a Stop Order or the Prospectus initiation or any amended Prospectus, threatening of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information proceeding with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and to a Stop Order. The Company will use its best efforts to prevent the issuance of any such order Stop Order and, if any Stop Order is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file .
(c) During the Prospectus (in form and substance satisfactory time when a prospectus relating to the Underwriter) Units is required to be delivered hereunder or transmit under the Prospectus Act or the regulations promulgated thereunder, comply so far as it is able with all requirements imposed upon it by a means reasonably calculated the Act, as now existing and as hereafter amended, and by the regulations promulgated thereunder, as from time to result time in filing force, so far as necessary to permit the continuance of sales of or dealings in the Units, as the case may be, in accordance with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than provisions hereof and the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration StatementProspectus. In case of the happeningIf, at any time within such period as when a Prospectus prospectus relating to the Units is required to be delivered hereunder or under the Act to be delivered or the regulations promulgated thereunder, any event shall have occurred as a result of which, in connection with the initial sale reasonable opinion of counsel for the SecuritiesCompany or counsel for the Placement Agent, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, Registration Statement or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so then amended or supplemented, will not contain contains any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or if, in light the opinion of either of such counsel, it is necessary at any time to amend or supplement the circumstances under Registration Statement or the Prospectus to comply with the Act or the regulations promulgated thereunder, the Company will immediately notify the Placement Agent and promptly prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Placement Agent) which they are made. The preparation will correct such statement or omission or which will effect such compliance and furnishing of will use its best efforts to have any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so declared effective as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawssoon as possible.
(bd) It will cooperate Deliver without charge to the Placement Agent such number of copies of each Prospectus as may reasonably be requested by the Placement Agent and, as soon as the Registration Statement, or any amendment thereto, becomes effective or a supplement is filed, deliver without charge to the Placement Agent one (1) signed copy of the Registration Statement, including exhibits, or such amendment thereto, as the case may be, and one (1) signed copy of any supplement thereto, and deliver without charge to the Placement Agent such number of copies of the Prospectus, the Registration Statement and amendments and supplements thereto, if any, without exhibits, as the Placement Agent may request for the purposes contemplated by the Act.
(e) Endeavor in good faith, in cooperation with the Placement Agent, at or prior to the time the Registration Statement becomes effective, to qualify the Securities Units for offering and the Option Securities and the Representative's Securities for initial sale under the blue sky or state securities laws of such jurisdictions as you the Placement Agent may designate and will make designate. In each jurisdiction where such applications and furnish such information as may qualification shall be required for that purposeeffected, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from unless the Placement Agent agrees in writing that such action is not at the time to timenecessary or advisable, prepare file and file make such statements and or reports at such times as are or may be required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction and will keep all filings current.
(cf) So long Use its best efforts to keep the Prospectus and the Registration Statement current and effective by filing post-effective amendments, as any of necessary, during the SecuritiesOffering.
(g) During the Offering, furnish the Placement Agent, without charge, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable following:
(i) Within ninety (90) days after the end of each fiscal year, financial statements audited by the independent certified public accountants for the Company, including a balance sheet sheet, statement of income and statement of cash flows of the Company and its then existing subsidiaries, with supporting schedules, prepared in accordance with generally accepted accounting principles, consistently applied, as at of the end of such fiscal yearyear and for the twelve (12) months then ended, together with statements of operations, shareholders' equity, and changes in cash flow which may be on a consolidated basis;
(ii) As soon as practicable after they have been sent to members of the Company for such fiscal yearor filed with the Commission, all in reasonable detail one (1) copy of each annual and accompanied interim financial and other report or communication sent by the Company to its members or filed with the Commission;
(iii) As soon as practicable, a copy of every press release and every material news item and article in respect of the certificate Company or report thereon of independent public accountants.its affairs which was released by the Company; and
(div) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages Such additional documents and information with respect to the Registration Statement Company and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act its affairs and the Rules and Regulations affairs of any of its subsidiaries as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Placement Agent may from time to time reasonably request.
(eh) The Company will apply Apply the net proceeds received by it from the sale of the Securities and the Option Securities substantially Offering in the manner set forth under "Use of Proceeds" in the Registration Statement or the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fi) As soon as it is practicableFile no amendment or supplement to the Registration Statement or the Prospectus at any time, but in any event not later than whether before or after the first (lst) day of the fifteenth (15th) full calendar month following the effective date Effective Date of the Registration Statement, unless such filing shall comply with the Company will make available to its security holders Act and the Underwriter an earnings statement regulations promulgated thereunder and unless the Placement Agent shall previously have been advised of such filing and furnished with a copy thereof, and the Placement Agent and counsel for the Placement Agent shall have approved such filing in writing.
(j) Comply with all registration, filing, and reporting requirements of the Act, the Exchange Act, state securities laws and the regulations promulgated thereunder, which need not may from time to time be auditedapplicable to the Company.
(k) covering a period Comply with all provisions of at least twelve (12) consecutive months beginning after the effective date of all undertakings contained in the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 2 contracts
Samples: Placement Agreement (Usa Capital First Trust Deed Fund LLC), Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Covenants of the Company. The Company covenants and agrees with you the Underwriters that:
(a) It If the Registration Statement has not yet been declared effective the Company will cooperate in all respects in making use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus effective and will not at any time, whether before is otherwise required under Rule 424(b) or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofRule 434, the Company will advise youfile the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and confirm file a term sheet that complies with the advice in writing, requirements of the receipt of any comments of the Commission or any state securities department, Rule 434.
(i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, post-effective amendment thereto or of the suspension of the qualification of the Securitiesinitiation, the Option Securities or the Representatives Securities for offering in any jurisdictionthreatening, or of the institution of any proceedings for therefor and (v) of the receipt of any such purposescomments from the Commission. If the Commission shall propose or enter a stop order at any time, and the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or be filed pursuant to Rule 424(b)(3424(b) not later than or Rule 434) that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of the happening, Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, the Company will notify you promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance reasonably satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Prospectus or supplement Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to be attached to you three signed copies of the Prospectus shall be without expense to youRegistration Statement, as initially filed with the Commission, and all amendments thereto (including exhibits) and will maintain in the Company's files manually signed copies of such documents for at least five years from the date of filing. The Company will promptly deliver to each of the best Underwriters such number of its ability comply with the Actcopies of any preliminary prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsRegistration Statement, and applicable state securities lawsall amendments of and supplements to such documents, if any, as you may reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company be obligated in connection therewith to qualify as at the end a foreign corporation or to execute a general consent to service of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceprocess. The Company will deliver to you, from time to time until the effective date promptly advise you of the Prospectus, as many copies receipt by the Company of any notification with respect to suspension of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date qualification of the Prospectus Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and thereafter for so long will use every reasonable effort to obtain the withdrawal of any order of suspension as a Prospectus is required to be delivered under the Act and the Rules and Regulations soon as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestpossible.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earning statement (in form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the effective date of the Registration Statement, (i) the Company will not, without the prior written consent of Bear, Xxxxxxx & Co. Inc., issue, sell, offer or contract to sell, grant any option, warrant or other right to purchase or otherwise sell or dispose of (or announce any offer of sale, contract of sale, sale, grant of any option, warrant or other right to purchase or other sale or disposition of), directly or indirectly, any shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for shares of Common Stock), except for the issuance by the Company of shares of Common Stock pursuant to the 1998 Employee Stock Purchase Plan or pursuant to the exercise of options outstanding under the 1998 Stock Incentive Plan at the time of the closing of the sale of the Firm Shares on the Closing Date (provided that the Company shall only so issue shares during such 180 days to persons who are not, at the time of the closing of the sale of the Firm Shares on the Closing Date, officers or directors of the Company or stockholders having beneficial ownership of a least 1% of the outstanding Common Stock of the Company), and (ii) the Company will obtain the undertaking of each of its officers and directors and all of its stockholders having beneficial ownership at least 1% of the outstanding Common Stock of the Company, as of the time of the closing of the sale of the Firm Shares hereunder on the Closing Date, not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you and, upon request, to each of the other Underwriters (i) copies of any reports or other communications that the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange or automated quotation system, and (iii) such other information as you may reasonably request regarding the Company, subject to the provisions of any written agreement that, in the opinion of outside counsel to the Company, prohibit the Company from furnishing such information under any circumstances including, without limitation, an agreement by you to be subject to the provisions of such written agreement.
(h) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner Shares as set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fi) As soon as it is practicable, but The Company will use its best efforts to cause the Shares to be included in any event not later than the first National Association of Securities Dealers Automated Quotation National Market System.
(lstj) day The Company will file with the Commission in its periodic reports pursuant to Section 13 or 15 of the fifteenth (15th) full calendar month following the effective date Exchange Act such information as may be required pursuant to Rule 463 of the Registration StatementRegulations.
(k) The Company, during the Company period when the Prospectus is required to be delivered under the Act or the Exchange Act, will make available file all documents required to its security holders be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act rules and Rule 158(a) of the Rules and Regulationsregulations thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Collateral Therapeutics Inc), Underwriting Agreement (Collateral Therapeutics Inc)
Covenants of the Company. The Company covenants and agrees with you each of the Underwriters that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement, if not effective prior to the execution and delivery of this Agreement, to become effective. If the Registration Statement has been declared effective prior to the execution and delivery of this Agreement, the Company will file the Prospectus effective with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by the Representatives, subparagraph (4)) of Rule 424(b) within the time period required under Rule 424(b) under the Act. The Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b).
(b) The Company will not at any timefile with the Commission the Prospectus or the amendment referred to in Section 1(a) hereof, whether before or after the effective date, file any amendment to or supplement to the Prospectus or any amendment to the Registration Statement unless the Representatives have received a reasonable period of which you shall not previously have been advised time to review any such proposed amendment or supplement and furnished with a copy consented to the filing thereof and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon the reasonable request of the Representatives or to which you or your counsel shall have reasonably objected or which is not in material compliance with for the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofUnderwriters, 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 amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters and 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 or supplement to the Prospectus, with the Commission in the manner and within the time period required by Rule 424(b) under the Act. The Company will advise youthe Representatives, and confirm the advice in writingpromptly after receiving notice thereof, of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus or any amendment thereto has been filed in accordance with said Rule 430A, or declared effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Representatives of each such filing or effectiveness.
(c) The Company will advise the effectiveness Representatives promptly after receiving notice or obtaining knowledge of (i) when any post-effective amendment to the Registration Statement or Prospectusis filed with the Commission, (ii) the receipt of any comments from the Commission concerning the Registration Statement, (iii) when any post-effective amendment to the Registration Statement becomes effective, or the filing of when any supplement to the Prospectus or any amended ProspectusProspectus has been filed, of any request made (iv) the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or the Prospectus or any order suspending trading in the Common Stock of the Companyamendment or supplement thereto, or of (v) the suspension of the qualification of the Securities, the Option Securities Shares for offer or the Representatives Securities for offering sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings proceeding for any such purposespurpose, and or (vi) any request made by the Commission or any securities authority of any other jurisdiction for amending the Registration Statement, for amending or supplementing the Preliminary Prospectus, any Issuer-Represented Free Writing Prospectus or the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if any such stop order or suspension is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use withdrawal thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus .
(in form and substance satisfactory to the Underwriterd) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, If at any time within such period following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus is required under the Act to be delivered in connection conflicted or would conflict with the initial sale information contained in the Registration Statement or included or would include an untrue statement of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, a material fact or the securities thereof, and which should be set forth in an amendment of omitted or would omit to state a supplement to the Prospectus material fact necessary in order to make the statements therein not then misleadingtherein, in the light of the circumstances existing prevailing at that subsequent time, not misleading, the time Company has notified or will notify promptly the Representatives so that any use of such Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the Company has promptly amended or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this covenant shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein.
(e) The Company represents and agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior written consent of each of the Company and the Representative, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Act, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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. The Company represents that it has satisfied the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
(f) If the delivery of a prospectus relating to the Shares is required under the Act at any time prior to be delivered, or in case it shall be necessary to amend or supplement the expiration of nine months after the date of the Prospectus to comply with and if at such time any events have occurred as a result of which the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so then amended or supplemented, will not contain any supplemented would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if for any reason it is necessary during such same period to amend or supplement the Prospectus, the Company will promptly notify the Representatives and furnishing of any such upon their 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 supplement omission or effects such compliance and will furnish without charge to be attached each Underwriter and to the any dealer in securities as many copies of such amended or supplemented Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsmay from time to time reasonably request.
(bg) It The Company promptly from time to time will cooperate take such action as the Representatives may reasonably request to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities or blue sky laws of such jurisdictions as you the Representatives may designate request and will make continue such applications and furnish such information qualifications in effect for as long as may be required for that purposenecessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or as a dealer in securitiessecurities or to file a general consent to service of process in any jurisdiction. The Company will, from time to time, prepare and will file such statements and reports as are or may be required to continue such qualification by the laws of each jurisdiction in effect for so long which the Shares have been qualified as the Underwriter may reasonably requestabove provided.
(ch) So long as any Upon request, the Company will promptly provide each of the SecuritiesRepresentatives, the Option Securities or the Representative's Securities remain outstanding in the hands without charge, (i) two manually executed copies of the public, Registration Statement as originally filed with the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, Commission and will furnish to the Underwriter as soon as practicable after the end of each fiscal yearamendment thereto, including all exhibits and all documents or information incorporated by reference therein, (ii) for each other Underwriter, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a conformed copy of the certificate or report thereon of independent public accountants.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement as originally filed and three copies of the registration statement each amendment thereto, without exhibits but including all financial statements and exhibits filed therewith, whether documents or not information incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus reference therein and thereafter for (iii) so long as a Prospectus prospectus relating to the Shares is required to be delivered under the Act and the Rules and Regulations Act, as many copies of each Preliminary Prospectus or the Prospectus, in final form, Prospectus or any amendment or supplement thereto as thereafter amended or supplemented, as you the Representatives may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fi) As soon as it is practicable, but in any event not later than the first Availability Date (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statementas defined below), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) of the Company and its subsidiaries, if any, covering a period of at least twelve (12) consecutive 12 months beginning after the effective date of the Registration Statement, Statement (which shall satisfy the requirements of need not be audited) complying with Section 11(a) of the Act and Rule 158(athe rules and regulations thereunder. “Availability Date” means the forty-fifth (45th) day after the end of the Rules and Regulationsfourth fiscal quarter following the fiscal quarter in which the Registration Statement went effective, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the ninetieth (90th) day after the end of such fourth fiscal quarter.
Appears in 2 contracts
Samples: Underwriting Agreement (Community Bank System Inc), Underwriting Agreement (Community Bank System Inc)
Covenants of the Company. The Company covenants and agrees with you thateach Underwriter as follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the The Company will advise you, and confirm notify the advice in writing, Representative promptly (i) of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement or Prospectus, or the filing of has become effective; (ii) any supplement to the Prospectus or the Preliminary Prospectus has been filed; (iii) of the receipt of any amended Prospectus, comments from the Commission; and (iv) of any request made by the Commission for any amendment or supplement to the Registration Statement, Prospectus or the Preliminary Prospectus or additional information. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the form of 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 make every reasonable effort necessary to prevent the issuance of any state securities department for stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company will not file any amendment or supplement to the Registration Statement, Disclosure Package, Prospectus or the Preliminary Prospectus which is not in compliance with Sections 424(b), 430A or Rule 433 of the Prospectus Act or for supplementing of to which the Prospectus Representative shall reasonably object by notice to the Company after having been furnished a copy thereof a reasonable time prior to the filing.
(b) The Company will advise the Representative, promptly after the Company receives notice or for additional information with respect theretoobtains knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Common Shares for offering or sale in any jurisdictionjurisdiction or quoted for trading on the Nasdaq Global Select Market, or of the institution initiation or, to the Company’s knowledge, threatening of any proceedings proceeding for any such purposes, purpose; and the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, or suspension or to obtain as soon as possible its withdrawal if such a stop order or suspension should be issued.
(c) During the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, period beginning on the Initial Sale Time and ending on the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies later of the Prospectus in connection with the sale of the SecuritiesClosing Date or such date, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the SecuritiesUnderwriters, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is no longer required under the Act by law to be delivered in connection with sales by the initial Underwriters or a dealer (the “Distribution Period”), the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in effect, so far as necessary to permit the sale and distribution of the Securities, Common Shares by the Option Securities Underwriters as contemplated by the provisions hereof and the Representative's Securities of Prospectus. If, during the Distribution Period the Preliminary Prospectus is being used to solicit offers to purchase Common Shares at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth Preliminary Prospectus in an amendment of or a supplement to the Prospectus writing in order to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under the Act to be deliveredwhich they were made, not misleading, or if, in case the opinion of counsel for the Underwriters, it shall be is necessary to amend or supplement the Preliminary Prospectus to comply with applicable law, the Company shall promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Preliminary Prospectus so that the statements in the Preliminary Prospectus as so amended or supplemented will not, in the light of the circumstances when the Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Preliminary Prospectus, as amended or supplemented, will comply with applicable law. If during the Distribution Period any event occurs, or fails to occur, as a result of which, in the judgment of the Company or in the opinion of the Underwriters, (i) the Prospectus would include an 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 then existing, not misleading, or (ii) it becomes necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, then the Rules Company will promptly notify the Representative and Regulations will prepare and file with the Commission, and furnish at its own expense to each Underwriter, an amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the Act.
(d) The Company shall cooperate with the Underwriters and their counsel in endeavoring to qualify the Common Shares for offering and sale under (or obtain exemptions from the application of) the applicable securities laws of such states and other jurisdictions of the United States as the Representative may reasonably designate; provided that no such qualification shall be required in any other lawjurisdiction where, as a result thereof, the Company would become subject to service of general process, to qualification to do business as a foreign entity, to registration as a securities dealer or to taxation as a foreign corporation. In each jurisdiction in which the Common Shares have been so qualified, the Company will forthwith prepare file such statements and reports as may be required to be filed by it by the laws of such jurisdiction to continue such qualification in effect so long as required for the distribution of such securities.
(e) During the Distribution Period, the Company shall furnish to you the Representative copies of such amended (i) the Registration Statement as originally filed (including all exhibits filed therewith), each amendment thereto (without exhibits) and (ii) each of the Preliminary Prospectuses, the Prospectus or of such supplement to be attached and all amendments and supplements thereto, in each case as soon as available and, with respect to the Prospectusdocuments in clause (ii), in such quantities as you the Representative may from time to time reasonably request.
(f) For a period of two years commencing with the date hereof, the Company will furnish to the Representative copies of all documents, reports and other information furnished by the Company to the holders of its Common Stock generally except, in order each case, if available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(g) The Company shall make generally available to holders of the Common Stock as soon as practicable, but in any event not later than 18 months after the “effective date of the Registration Statement” (as defined in Rule 158(c)) of the Rules and Regulations), an earnings statement (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(h) The Company will use the net proceeds received by it from the sale of the Common Shares in the manner specified in the Prospectus under “Use of Proceeds.”
(i) The Company shall not take, directly or indirectly, prior to the termination of the offering contemplated by this Agreement, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(j) For so long as the shares of Common Stock sold in the offering contemplated by this Agreement are listed on the Nasdaq Global Select Market or a comparable securities exchange or market, the Company shall engage and maintain a registrar and transfer agent for the Common Stock.
(k) The Company shall file, on a timely basis, with the Commission all reports and documents required to be filed under the Exchange Act during the Distribution Period.
(l) For a period of 90 days after the date of the Prospectus (the “Lock-Up Period”) neither the Company nor any of its executive officers or directors included on Exhibit A, hereto, shall, without the prior written consent of X.X. Xxxxxxxx & Co., on behalf of the Underwriters, (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or enter into a transaction that would have the same effect; or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise; (2) publicly disclose the intention to make any such offer, sale, hypothecation, pledge, grant or disposition, or to enter into any such transaction, swap, hedge or other arrangement; or (3) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock; provided, however, that the foregoing restrictions do not apply to (i) the registration of the Common Shares and the sales thereof to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Prospectus and the Incorporated Documents, (iii) the grant of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans and described in the Incorporated Documents, and (iv) transfers of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock by any of the persons subject to a lock-up agreement (a) as a bona fide gift or gifts, (b) by will or intestacy or (c) to any member of such person’s immediate family or a trust created for the direct or indirect benefit of such person or the immediate family thereof, provided that, in any such case, the transferee or transferees shall execute and deliver to the Underwriters, before such transfer, an agreement to be bound by the restrictions on transfer described above; provided, further, that, if (x) within 17 days of the expiration of the Lock-Up Period, the Company issues an earnings release or discloses material news, or a material event relating to the Company occurs, or (y) before the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then in any such case the restrictions imposed by this Section 4(A)(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, the disclosure of the material news or the occurrence of the material event; provided, moreover, that the foregoing clause shall not apply if the Company delivers to the Underwriters, not sooner than 18 nor later than 16 days before the last day of the Lock-Up Period, a certificate, signed by the chief financial officer or chief executive officer of the Company, certifying on behalf of the Company that the shares of Common Stock are “actively traded securities,” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act.
(m) The Company will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by existing Lock-Up Agreements for the duration of the periods contemplated in such agreements.
(n) The Company shall not, without the prior written consent of the Representative, prepare or use a Free Writing Prospectus in connection with the offering and sale of the Common Shares or take any actions that would require the Company or the Underwriters to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations. The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, or retention where required, and legending. The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as so amended a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Preliminary Prospectus or supplemented, will not contain any the Prospectus or would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Actthen prevailing, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statementmisleading, the Company will make available give prompt notice thereof to its security holders the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to the Underwriters an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of expressly for use therein as identified in Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations10 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Pacific Continental Corp), Underwriting Agreement (Pacific Continental Corp)
Covenants of the Company. 3.1 The Company covenants and agrees with you the Sales Manager that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or As promptly as practicable after the effective date, file any amendment to or supplement to the Prospectus date of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofthis Agreement, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when (if not previously filed) file the Registration Statement becomes effective if to permit sales of the provisions of Rule 430A promulgated Company Equity Securities under the Act Act. The Company will be relied uponuse its best reasonable efforts to cause the Registration Statement to become effective as promptly as possible thereafter.
(b) During the period in which the Sales Agent has been requested to offer and sell Company Equity Securities, the Company will notify the Sales Manager promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness and of any post-effective request by the Commission for any amendment or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulationsinformation. The Company will prepare and file with the statesCommission, promptly upon your the Sales Manager’s reasonable request, any such amendments or supplements to the Prospectus, and take any other action, asRegistration Statement or Prospectus that, in the opinion of your counselSales Manager’s reasonable opinion, may be necessary or advisable in connection with the initial sale of the Securities, the Option Company Equity Securities and the Underwriter's Securities and will use its best efforts pursuant to cause the same to become effective as promptly as possiblethis Agreement. The Company shall will not file any amendment or supplement to the Registration Statement or Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later other than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus that (i) does not materially change the information about the Company or its business, operations, properties or financial condition previously disclosed in order the Registration Statement or Prospectus, (ii) relates to make a “follow-on” offering of Company Equity Securities by the statements therein Company, or (iii) relates to an offering of securities other than the Company Equity Securities (each, an “Excluded Supplement”)) unless a copy thereof has been submitted to the Sales Manager a reasonable period of time before the filing and the Sales Manager has not then misleading, in light of reasonably objected thereto; and it will notify the circumstances existing Sales Manager at the time of filing thereof of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus, which will then be available on the Company’s website at xxx.xxxxxxxx.xxx (and will furnish to the Sales Manager any such document that is not available on the Company’s website). The Company will cause each amendment to the Registration Statement or supplement to the Prospectus is required under the Act and each filing or report incorporated therein, to be delivered, or prepared in case it shall be necessary to amend or supplement the Prospectus to comply with form and substance as required by the Act, the Rules and Regulations Regulations, the Exchange Act and the rules and regulations thereunder, and to be timely filed with the Commission.
(c) The Company will advise the Sales Manager, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any other lawstop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of any Company Equity Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its best reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(d) Within the time during which a prospectus relating to any Company Equity Securities is required to be delivered under the Act, the Company will forthwith prepare comply with all requirements imposed upon it by the Act and furnish by the Rules and Regulations, as from time to you copies time in force, so far as necessary to permit the continuance of such amended Prospectus sales of or of such supplement to be attached to dealings in the Company Equity Securities as contemplated by the provisions hereof and the Prospectus, in . If during such quantities period any event occurs as you may reasonably request, in order that a result of which the Prospectus, as so then amended or supplemented, will not contain any would include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if during such amendment period it is necessary to amend or supplement the Registration Statement or Prospectus to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act Company will promptly notify the Sales Manager to suspend the offering of Company Equity Securities during such period and applicable state securities laws the Company will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to permit correct such statement or omission or effect such compliance and will use its best reasonable efforts to have any amendment or supplement to the initial offer and sales Registration Statement or Prospectus declared effective as soon as possible, unless the Company has reasonable business reasons to defer public disclosure of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsrelevant information.
(be) It The Company will cooperate use its best reasonable efforts to qualify the Securities and the Option Securities and the Representative's any Company Equity Securities for initial sale under the securities laws of such jurisdictions as you may designate the Sales Manager designates and will make to continue such applications and furnish such information qualifications in effect so long as may be required for the sale of any Company Equity Securities, except that purpose, provided the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a dealer general consent to service of process in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably requestany jurisdiction.
(cf) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter as soon as practicable after Sales Manager and its legal counsel (at the end of each fiscal year, a balance sheet expense of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(dCompany) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement and three copies of or Prospectus that are filed with the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Commission during the period in which a prospectus relating to any Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus Equity Securities is required to be delivered under the Act and (including all documents filed with the Rules and Regulations as many copies of the ProspectusCommission during such period that are deemed to be incorporated by reference therein), in final form, or each case as thereafter amended or supplemented, soon as you available and in such quantities as the Sales Manager may from time to time reasonably request. The Company will take such action as to enable the conditions set forth in Rule 153(b) of the Rules and Regulations to be satisfied at all times that the Sales Agent is selling any Company Equity Securities.
(eg) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, make generally available to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As its security holders as soon as it is practicable, but in any event not later than 15 months after the first (lst) day end of the fifteenth (15th) full calendar month following the effective date of the Registration StatementCompany’s current fiscal quarter, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a 12-month period of at least twelve (12) consecutive months beginning after that satisfies the effective date of the Registration Statement, which shall satisfy the requirements provisions of Section 11(a) of the Act and Rule 158(a) 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all of its expenses incident to the performance of its obligations hereunder (including, but not limited to, any transaction fees imposed by any governmental or self-regulatory organization with respect to transactions contemplated by this Agreement and any blue sky fees) and will pay the expenses of printing all documents relating to the offering. The Company will reimburse the Sales Manager for its reasonable out-of-pocket costs and expenses incurred in connection with entering into this Agreement, including, without limitation, reasonable travel, reproduction, printing and similar expenses, as well as the reasonable fees and disbursements of its legal counsel.
(i) The Company shall use its best reasonable efforts to list, subject to notice of issuance, the Company Equity Securities on the applicable Trading Market.
(j) The Company will apply the Net Proceeds from the sale of the Company Equity Securities as set forth in the Prospectus.
(k) The Company will not, directly or indirectly, offer or sell any shares of equity securities (other than the Company Equity Securities) or securities convertible into or exchangeable for, or any rights to purchase or acquire, equity securities (other than the Company Equity Securities) during the period from the date of this Agreement through the final Settlement Date for the sale of any Company Equity Securities hereunder without (i) giving the Sales Manager at least one business day prior written notice specifying the nature of the proposed sale and the date of such proposed sale and (ii) suspending activity under this program for such period of time as may reasonably be determined by agreement of the Company and the Sales Manager; provided, however, that no such notice and suspension shall be required in connection with the Company’s issuance or sale of (i) shares of equity securities pursuant to any employee or director stock option or benefits plan, stock ownership plan, dividend reinvestment plan, as such plans may be amended from time to time, and (ii) equity securities issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding on the date hereof. Notwithstanding the foregoing, this paragraph (k) shall not apply during periods that the Company is neither selling Company Equity Securities through the Sales Manager nor has requested the Sales Manager to sell Company Equity Securities.
(l) The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Sales Manager immediately after it shall have received notice or obtain knowledge thereof, of any information or fact that would alter or affect any opinion, certificate, letter and other document provided to the Sales Manager pursuant to Article IV herein.
(m) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than an Excluded Supplement) and on the dates specified in Section 4.1(f) below, the Company shall (unless the Company is not then selling Company Equity Securities through the Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) furnish or cause to be furnished to the Sales Manager forthwith a certificate, in form and substance satisfactory to the Sales Manager to the effect that the statements contained in the certificates referred to in Section 4.1(f) below that were last furnished to the Sales Manager are true and correct at the time of such amendment or supplement, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificates, certificates of the same tenor as the certificates referred to in said Section 4.1(f) below, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(n) Each time that a post-effective amendment to the Registration Statement is declared effective or the Company files an Annual Report on Form 10-K, and at such other times as may be reasonably requested by the Sales Manager, the Company shall (unless the Company is not then selling Company Equity Securities through the Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) furnish or cause to be furnished forthwith to the Sales Manager and to its legal counsel, a written opinion of Xxxxxxx Xxxxx LLP, counsel to the Company (“Company Counsel”), or other counsel reasonably satisfactory to the Sales Manager, dated the date of effectiveness of such amendment or the date of filing with the Commission of such document, as the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the opinion referred to in Section 4.1(d) below, but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion; provided , however that in lieu of such opinion, the Company may furnish the Sales Manager with a letter from Company Counsel to the effect that the Sales Manager may rely on the prior opinion delivered pursuant to Section 4.1(d) below to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to the time of delivery of such letter).
(o) Each time that a post-effective amendment to the Registration Statement is declared effective or the Company files an Annual Report on Form 10-K, and at such other times as may be reasonably requested by the Sales Manager, the Company shall (unless the Company is not then selling Company Equity Securities through the Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) cause Ernst & Young LLP, or other independent accountants then retained by the Company, forthwith to furnish to the Sales Manager a letter, dated the date of effectiveness of such amendment, or the date of filing of such supplement or other document with the Commission, as the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the letter referred to in Section 4.1(e) below but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(p) The Company represents and agrees that, unless it obtains the prior consent of the Sales Manager, and the Sales Manager represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to any Company Equity Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Sales Manager is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Act, and has complied and will comply with the requirements of Rules 164 and 433 of the Act, as applicable to any Permitted Free Writing Prospectus, including timely Commission filings where required, legending and record keeping. For the purposes of this Section, “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Act, relating to any Company Equity Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) of the Act. Notwithstanding the foregoing, the Company shall not be required to obtain the consent of the Sales Manager with respect to the offering of any securities other than Company Equity Securities or any “follow-on” offering of Company Equity Securities pursuant to an Issuer Free Writing Prospectus.
Appears in 2 contracts
Samples: Sales Agreement (Capstead Mortgage Corp), Sales Agreement (Capstead Mortgage Corp)
Covenants of the Company. The Company covenants and agrees with you thatthe Underwriters:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you The Company shall not previously have been advised and furnished comply with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing make all requisite filings with the Commission pursuant to rule 424(b)(1and in accordance with Rule 430A and subparagraph (1) or pursuant (or, if applicable and if consented to by you, subparagraph (4)) of Rule 424(b)(3424(b) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and Agreement or (ii) the fifth business day date on which the Prospectus is first used after the Registration Statement is declared effective. The Company will advise you promptly of any such filing pursuant to Rules 430A or 424(b).
(b) The Company will not file with the Commission the Prospectus or any amendment or supplement to the Prospectus or any amendment to the Registration Statement unless you have received a reasonable period of time to review any such proposed amendment or supplement and consented to the filing thereof and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective date as promptly as possible. Upon the request of the Representative or counsel for the Representative, the Company will promptly prepare and file with the Commission, in accordance with the Rules and Regulations, any amendments to the Registration Statement. In case of Statement or amendments or supplements to the happening, at any time within such period as a Prospectus is required under the Act to that may be delivered necessary or advisable in connection with the initial sale distribution of the SecuritiesShares by the 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 Option Securities and the Representative's Securities of Company will file any event of which the Company has knowledge and which materially affects the Company, amendment or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. The Company will advise the Representative, 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 or any amendment or supplement thereto has been filed and will provide evidence to the Representative of each such filing or effectiveness.
(c) The Company will advise you promptly after receiving notice or obtaining knowledge of (i) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Shares for offer or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose, or (iii) any request made by the Commission or any securities authority of any other jurisdiction for amending the Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to make prevent the statements therein not then misleadingissuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(d) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any events shall have occurred as a result of which, in light the judgment of the circumstances existing at Company or the time opinion of the Underwriters, the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so then amended or supplemented, will not contain any supplemented would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectustherein, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.light
Appears in 2 contracts
Samples: Underwriting Agreement (Sun Bancshares Inc), Underwriting Agreement (Sun Bancshares Inc)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It Marquee will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, Marquee will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, Marquee will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by all of the Underwriters of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, Marquee will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Units. As soon as the Company Marquee is advised thereof, the Company Marquee will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company Marquee has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company Marquee has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company Marquee authorizes you the Underwriters and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel and our counsel to the several Underwriters the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter or dealer of any event of which the Company Marquee has knowledge and which materially affects the Company, Company or the securities thereofof Marquee, and or which in the opinion of counsel for the Company or counsel for the Underwriters should be set forth in an amendment of to the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Units or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActUnderwriters, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for except that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the case any Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectusrequired, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from connection with the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly Units to deliver a Prospectus nine months or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning more after the effective date of the Registration Statement, which shall satisfy Marquee will upon request of and at the requirements of Section 11(a) expense of the Act and Rule 158(a) of the Rules and Regulations.Underwriter, amend or
Appears in 2 contracts
Samples: Underwriting Agreement (Marquee Group Inc), Underwriting Agreement (Marquee Group Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus effective Registration Statement and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. UVEST will have the opportunity to review and approve the Registration Statement and any amendment thereto. The Company will promptly advise you, and confirm the advice UVEST in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectus, after it becomes effective) or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective) or the Prospectus and of which UVEST has not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which UVEST reasonably objects or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your UVEST's request, any such amendments amendment or supplements supplement to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, UVEST's reasonable judgment may be necessary or advisable in connection with to enable UVEST to continue the initial sale distribution of the SecuritiesShares in compliance with Chapter 78A, the Option Securities 1933 Act, and the Underwriter's Securities Rules and Regulations, and will use its best efforts to cause the same to become effective as promptly as possible. Additionally, in the event that UVEST is required to make any filings with the NASD or the North Carolina Securities Division in connection with this Offering, the Company will apply its best efforts to cooperate with UVEST. The Company shall file covenants that it will not commence the Prospectus Offering in North Carolina until such time as UVEST has received any required approvals from the North Carolina Securities Division.
(in form and substance satisfactory to the Underwriterc) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, If at any time within such the nine-month period as referred to in Section 10(a)(3) of the 1933 Act during which a Prospectus prospectus relating to the Common Shares is required under the Act to be delivered in connection with under the initial sale of the Securities, the Option Securities and the Representative's Securities of 1933 Act any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange 1933 Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise UVEST thereof and applicable state securities lawswill promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case UVEST is required to deliver a prospectus after such nine-month period, the Company upon request, but at the expense of UVEST, will promptly prepare 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 1933 Act.
(bd) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and will timely file such statements and reports as are or may be required necessary pursuant to continue such qualification the Exchange Act in effect order to make generally available to its security holders as soon as practicable an earnings statement for so long as the Underwriter may reasonably requestpurposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(ce) So long During such period as any of the Securities, the Option Securities or the Representative's Securities remain outstanding a prospectus is required by law to be delivered in the hands of the publicconnection with sales by UVEST, the Company, at its expense, will annually furnish but only for the nine-month period referred to its shareholders a report in Section 10(a)(3) of its operations to include financial statements audited by independent public accountantsthe 1933 Act, and will furnish to UVEST or mail to the Underwriter as soon as practicable after the end order of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed UVEST copies of the signature pages to the Registration Statement and three copies the Prospectus and all amendments and supplements to any such documents, in each case as soon as available and in such quantities as UVEST may request, for the purposes contemplated by the Act.
(f) The Company shall qualify or register the Shares for sale under (or obtain exemptions from the application of) Chapter 78A, will comply with such law and will continue such qualification, registration and exemption in effect so long as reasonably required for the distribution of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceShares. The Company will deliver to you, from time to time until the effective date advise UVEST promptly of the Prospectus, as many copies suspension of the Prospectus as you may reasonably request. The Company will deliver to you on qualification or registration of (or any such exemption relating to) the effective date Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the Prospectus and thereafter for so long as a Prospectus is required issuance of any order suspending such qualification, registration or exemption, the Company, with UVEST's cooperation, will use its best efforts to be delivered under obtain the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestwithdrawal thereof.
(eg) In the event that the Company intends to publish or distribute any sales literature, advertisements or other communications ("Marketing Material") to existing shareholders or prospective purchasers of the Shares in connection with the Offering, the Company will afford UVEST with a reasonable opportunity to review and approve the Marketing Material prior to such publication or distribution.
(h) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion UVEST may, in its sole discretion, waive in writing the performance by the Company of any one or more of the proceeds shall be used, directly foregoing covenants or indirectly, to acquire any securities issued by extend the Company, without the prior written consent of the Underwritertime for their performance.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 2 contracts
Samples: Selling Agent Placement Agreement (HCSB Financial Corp), Selling Agent Placement Agreement (HCSB Financial Corp)
Covenants of the Company. The Company hereby covenants and agrees with you thateach of the Underwriters as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Representative promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Shares by the Underwriters; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Representative shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Representative, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Shares is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Shares for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Representative may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Shares; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Shares shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter Underwriters copies of the Registration Statement (one of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Representative may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Representative as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Representative with the following:
(i) Two copies of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Representative may reasonably request. The Company will, for a period of five (5) years from the Effective Date, and as soon as practicable following the close of each applicable period, furnish directly to the Representative detailed quarterly and annual profit and loss statements, reports of the Company's cash flow, other financial statements, and statements of application of the proceeds of the offering of the Shares by the Company.
(g) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)- month period beginning after the Effective Date of the Registration Statement.
(h) If required by the Securities Act or the Rules and Regulations thereunder, the Company will prepare and file with the SEC reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(i) After completion of the offering of the Shares, the Company will make all filings required to maintain the quotation of the Common Stock on The Nasdaq SmallCap Market or any national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Shares being sold by it substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion .
(k) During the Lock-Up Period, and except for the sale of the proceeds shall be used, directly or indirectly, to acquire any securities issued Shares by the CompanyCompany pursuant to this Agreement, the Company will not, without the prior written consent of the UnderwriterRepresentative, effect the Disposition of, directly or indirectly, any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock.
(fl) As soon as it is practicableThe Company will not take, but and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in any event not later than the first (lst) day stabilization or manipulation of the fifteenth (15th) full calendar month following the effective date price of any security of the Registration Statement, Company to facilitate the sale or resale of the Shares.
(m) The Company will make available inform the Florida Department of Banking and Finance at any time prior to its security holders and the Underwriter an earnings statement (which need not consummation of the distribution of the Shares by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be audited) covering a period of at least twelve (12) consecutive months beginning provided within 90 days after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationscommencement thereof or after a change occurs with respect to previously reported information.
Appears in 2 contracts
Samples: Underwriting Agreement (Eco Soil Systems Inc), Underwriting Agreement (Eco Soil Systems Inc)
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in the opinion of the Company and the Underwriter, may be necessary or for additional information advisable in connection with respect thereto, the distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter promptly after it shall receive notice or obtain knowledge thereof of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Units for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time will use its best efforts to time, prepare make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, The Nasdaq Stock Market, the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) After completion of the offering of the Units, the Company will make all filings and take all actions required to maintain the quotation or listing of the Units on The Nasdaq SmallCap Market, The Nasdaq National Market or any national stock exchange. The Company shall make all filings and take all actions required to have the Common Stock and the Redeemable Warrants constituting the Units to be quoted on the same automated quotations system or listed on the same national stock exchange on which the Units are being quoted or listed, which quotation or listing shall be effective eighteen (18) months from the Effective Date, when the Units become separable. After the Units become separable, the Company will make all filings and take all actions required to maintain the quotation or listing of the Common Stock and the Redeemable Warrants on such quotations system or national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion .
(k) For a period of six months after the proceeds shall be usedSecond Closing Date, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly, offer to sell, contract to sell, sell, pledge, hypothecate, transfer or otherwise dispose of or grant any rights with respect to (collectively, a "Disposition") of any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock, except that the Company may take the following actions:
(i) sell Units pursuant to this Agreement;
(ii) grant options under the Company's Stock Plans in the ordinary course, but only if the per share exercise price or conversion price of any such options is equal to or greater than the market price of the Common Stock on the date of grant;
(iii) issue shares of Common Stock upon the exercise of options granted under the Stock Plans and upon the exercise of warrants outstanding on the date of this Agreement; and
(iv) issue the Company's Securities in connection with the Company's acquisition of any business entity or property when approved by the Company's board of directors or shareholders, if such approval is required.
(fl) As soon as it is practicableFor a period of six months from the Effective Date, but in any event not later than the first (lst) day Company will not, without the prior written consent of the fifteenth Underwriter, file a registration statement with the SEC or any state securities or "Blue Sky" law authority relating to any of the Company's Securities, whether such shares are to be offered and sold by the Company or by its shareholders, except for a Registration Statement on Form S-4 or Form S-8 (15thor any successor or replacement forms of such registration statements) full calendar month relating only to shares of Common Stock subject to options granted under the Stock Plans with respect to a Form S-8 or any successor or replacement form, or Securities of the Company issued in connection with an acquisition with respect to a Form S-4 or any successor or replacement form.
(m) The Company will not take, and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
(n) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Units by the Underwriter if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
(o) The Company will cause the Common Stock, the Redeemable Warrants and the Units to be registered under the Exchange Act, which registrations shall be effective concurrently with the effectiveness of the Registration Statement.
(p) The Company hereby grants to the Underwriter the right to nominate a representative to serve on the Company's Board of Directors during the period of three (3) years following the effective date Effective Date of the Registration Statement, and the Company shall use its best efforts to secure the election of such representative to the Company's Board of Directors; provided, that any compensation received by such representative or the Underwriter in connection with the representative serving on the Company's Board of Directors shall not exceed any compensation received by any other member of the Company's Board of Directors.
(q) Unless the Company's Common Stock and Redeemable Warrants are listed on The Nasdaq National Market or other suitable secondary trading exemptions are available, or if for any reason state Blue Sky or securities laws do not apply to secondary trading of the Common Stock and Redeemable Warrants, the Company will make available seek to its security holders become listed in Standard & Poors or another recognized securities manual as soon as practicable after the Effective Date and shall pay all filing fees in connection therewith, for the purpose of facilitating secondary trading in the Common Stock and Redeemable Warrants; and the Underwriter an earnings statement (Company shall also agree to make appropriate filings to qualify the Common Stock and Redeemable Warrants for secondary trading in states in which need not such filings are necessary to cause the Common Stock and Redeemable Warrants to be audited) covering a period of at least twelve (12) consecutive months beginning after qualified, provided that such qualification may be obtained without causing the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsCompany extraordinary cost or hardship.
Appears in 2 contracts
Samples: Underwriting Agreement (Medicalcv Inc), Underwriting Agreement (Medicalcv Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
(b) It will cooperate promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to qualify cause the Securities and same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Option Securities and Company upon request, but at the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxxxxx Securities (which consent may be withheld at the sole discretion of Xxxxxxxxxx Securities), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security ("Securities") other than (i) pursuant to outstanding stock options and warrants, (ii) pursuant to stock option and employee benefit plans in effect as of the date hereof and (iii) Securities issued as consideration for an acquisition (A) if the party being issued such Securities agrees to similar lock-up provisions or (B) if such Securities are "restricted securities" under the Act, provided that the Company agrees that it will not register such Securities under the Act during the period of 90 days after the date of the Prospectus.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(l) If at any time during the period after the Registration Statement becomes effective that a Prospectus is required to be delivered, 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), 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.
(m) The Company further agrees that, if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 2 contracts
Samples: Underwriting Agreement (Kulicke & Soffa Industries Inc), Underwriting Agreement (Kulicke & Soffa Industries Inc)
Covenants of the Company. The Company covenants and agrees with you the ------------------------ Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Stock contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective (the "Minimum Period"), the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Stock. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Stock for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Stock for such period as in the opinion of your counsel and our counsel to the Underwriter the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the this Act to be delivered in connection with sales by the initial sale of the Securities, the Option Securities and the Representative's Securities Underwriter of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Stock or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations law or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Think New Ideas Inc), Underwriting Agreement (Think New Ideas Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act) of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close provisions of business on the earlier of (i) the second business day following the execution Rules 424(b), 430A and delivery of this Agreement434, and (ii) the fifth business day after the effective date as applicable, of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities lawswill promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders an earning statement (which need not be audited) covering a period of 12 consecutive months beginning after the effective date of the Registration Statement which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(be) It During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents (including any documents incorporated or deemed incorporated by reference therein) in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Securities and the Option Securities and the Representative's Securities Common Shares for initial sale under (or obtain exemptions from the securities application of) the Blue Sky laws of such jurisdictions as you designate (including those of Canada) and under the applicable securities laws of such other nations as you may designate designate, will comply with such laws and will make continue such applications qualifications, registrations and furnish such information exemptions in effect so long as may be reasonably required for that purpose, provided the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securitiesany such jurisdiction where it is not presently qualified. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any will advise you promptly of the Securitiessuspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, the Option Securities sale or the Representative's Securities remain outstanding trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the hands event of the publicissuance of any order suspending such qualification, registration or exemption, the Company, at its expensewith your cooperation, will annually furnish use its best efforts to its shareholders a report obtain the withdrawal thereof.
(g) During the period of its operations to include financial statements audited by independent public accountantsfive years hereafter, and the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, a copies of the Annual Report of the Company containing the balance sheet of the Company as at of the end close of such fiscal year, together with year and statements of operationsincome, shareholders' equity, equity and changes in cash flow flows for the year then ended and the opinion thereon of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of either Montxxxxxx Xxxurities or each of the Representatives (which consent may be withheld at the sole discretion of Montxxxxxx Xxxurities or the Representatives, as the case may be), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Ordinary Shares or other equity security, other than pursuant to outstanding stock options and warrants disclosed in the Prospectus and other than the grant of options or the issuance of the Company's equity securities pursuant to the Company's employee share option plans described in the Prospectus or the issuance of Ordinary Shares in connection with acquisitions.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(ei) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities Common Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fj) As soon During such period as it a prospectus is practicable, but required by law to be delivered in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statementconnection with sales by an Underwriter or dealer, the Company will make available file all documents required to its security holders and be filed with the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date Commission pursuant to Section 13, 14 or 15 of the Registration StatementExchange Act in the manner and within the time periods required by the Exchange Act. The Representatives, which shall satisfy the requirements of Section 11(a) on behalf of the Act and Rule 158(a) Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the Rules and Regulationsforegoing covenants set forth in Section 5 herein or extend the time for their performance.
Appears in 2 contracts
Samples: Underwriting Agreement (Flextronics International LTD), u.s. Underwriting Agreement (Flextronics International LTD)
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofCommission, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Units for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; PROVIDED, HOWEVER, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the Commission, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) After completion of the offering of the Units, the Company will make all filings required to maintain the quotation of the Common Stock on The Nasdaq SmallCap Market or any national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion .
(k) For a period of six months after the Effective Date of the proceeds shall be usedRegistration Statement, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly, effect the disposition of any securities including, without limitation, any securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any securities that are convertible into or exchangeable or exercisable for Common Stock, except the Company may take the following actions:
(i) sell Units pursuant to this Agreement;
(ii) grant options under the Option Plans in the ordinary course, provided that the exercise price or conversion price of any options shall have an exercise price or conversion price that is not less than the market price of the Common Stock at the date of grant, or if greater, $4.00 per share;
(iii) issue shares of Common Stock pursuant to the exercise of options granted under the Option Plans; and
(iv) sell Common Stock, grant warrants to purchase Common Stock (and issue shares pursuant to the exercise of such warrant), and grant other Securities convertible into Common Stock (and issue shares pursuant to the exercise of such warrant), to the Company's strategic business partners consistent with the past practices of the Company, provided that the exercise price or conversion price of any warrants or other convertible Security shall have an exercise price or conversion price that is not less than the market price of the common stock at the date of grant, or if greater, $4.00 per share.
(fl) As soon as it is practicableThe Company will not take, but and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in any event not later than the first (lst) day stabilization or manipulation of the fifteenth price of any security of the Company to facilitate the sale or resale of the Units.
(15thm) full calendar month The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Units by the Underwriter if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
(n) The Company hereby grants to the Underwriter a right of first refusal to act as the sole or managing agent or underwriter, as the case may be, for any private or public offering of equity or debt securities commenced by the Company during the period of three (3) years following the effective date Effective Date of the Registration Statement. If the Company receives a bona fide offer from any third party to serve as sole or managing agent or underwriter in such a private or public offering which the Company is willing to accept, the Company will make available shall promptly give written notice to its security holders the Underwriter, including all essential terms and the conditions of such offer. The Underwriter an earnings statement (which need not be audited) covering shall have a period of at least twelve fifteen (1215) consecutive months beginning days after receipt of such written notice to elect to enter into an agreement with the effective date Company as sole or managing agent or underwriter, as the case may be, on the same terms and conditions as set forth in the Company's written notice, after which time the Underwriter will be deemed to have declined such exercise. If the Underwriter declines to exercise its right of first refusal or fails to notify the Company within such 15-day period of an election to invoke its right of first refusal, the Company may enter into an agreement with such third party from whom it has received a bona fide offer; provided, however, that the Underwriter's right of first refusal with respect to other offerings shall continue until the termination of the three-year period following the Effective Date of the Registration Statement. If the Company fails to enter into such an agreement with such third party or if the terms and conditions of such offer are thereafter materially changed, which the right of first refusal granted to the Underwriter shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationsonce again apply.
Appears in 1 contract
Samples: Underwriting Agreement (Founders Food & Firkins LTD /Mn)
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise the Underwriter and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you the Underwriter or your its counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) _____ days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise youthe Underwriter, and confirm provide the advice in writingUnderwriter copies of any written advice, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for an amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you the Underwriter copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel to the Underwriter and our counsel the Company the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with sales by the initial sale of the Securities, the Option Securities and the Representative's Securities Underwriter or dealer of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, opinion of counsel for the Company and which counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Units or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify the Underwriter promptly and forthwith prepare and furnish to you the Underwriter copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.reasonably
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of filing or to which you reasonably object (except to the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as extent any amendment or supplement to which you object is necessary in the opinion of your counsel and our counsel to the use thereof is Company to ensure that the Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to comply be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading) or which is not in compliance in all material respects with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare fully and file completely comply with the states, promptly provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon your request, any such amendments or supplements to Rule.
(c) If during such period after the Prospectus, and take any other action, first date of the public offering of the Shares as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act by law to be delivered in connection with the initial sale of the Securitiessales by an Underwriter or dealer, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective (b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale extent effectiveness is required under the securities laws Act or the Rules and Regulations) as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such period, the Company upon request, but at the expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents (other than periodic filings under the Exchange Act) in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate and Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Representatives: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Shares are released by you for sale to the public, without the prior written consent of Xxxxxxx, Xxxxx & Co., as a Representative of the Underwriters, or each of the Representatives (which consent may be withheld at the sole discretion of any of the Representatives), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security; provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of stock options and warrants outstanding on the date hereof, as described in the Prospectus (it being agreed that the Company shall not accelerate the exercisability of any such options or grant any waiver or acceleration under the terms of the Stock Restriction Agreement to be entered into by the optionee upon the exercise of such options), and (ii) grant options and issue shares of Common Stock in accordance with its Amended and Restated Stock Option Plan, Stock Incentive Plan or Employee Stock Purchase Plan, as described in the Prospectus or in materials incorporated by reference in the Prospectus.
(i) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(j) The Company will cause its counsel to promptly prepare a reasonable number of copies of bound closing volumes for the Representatives and their counsel. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
10 11 (a) It The Company, upon notification from the Commission that the Registration Statement has become effective, will cooperate in all respects in making the Prospectus effective so advise you and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing, acting reasonably, or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (i) the completion by the Underwriters of the distribution of the Securities as contemplated hereby; or applicable state law(ii) 25 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which may be necessary or advisable in connection with the distribution of the Securities and as mutually agreed to by the Company and the Representative. As After the Effective Date and as soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyPreliminary Prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus and Definitive Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriters and the dealers Selected Dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel to the Underwriters the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with sales by the initial sale of the SecuritiesUnderwriters or Selected Dealers, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereofopinion of counsel for the Company or counsel for the Underwriters, and which should be set forth in an amendment of to the Registration Statement or a supplement to the Prospectus Prospectus, in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivereddelivered to a purchaser of the Securities, or in case it shall be necessary to amend or supplement the Prospectus to comply with law or with the Act, Act and the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsUnderwriters.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act) of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several International Managers to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities International Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus to
(in form and substance satisfactory to the Underwriterc) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the International Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities lawswill promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any International Manager is required to deliver a prospectus after such nine-month period, the Company upon request, but at the expense of such International Manager, will promptly prepare 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.
(bd) It will cooperate to qualify As soon as practicable, but not later than 45 days after the Securities end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and Company will make such applications and furnish such information as may be required for that purpose, provided the Company shall generally available to its security holders an earning statement (which need not be required to qualify as audited) covering a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as period of 12 consecutive months beginning after the Underwriter may reasonably requesteffective date of the Registration Statement which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(ce) So long During such period as any of the Securities, the Option Securities a prospectus is required by law to be delivered in connection with sales by an International Manager or the Representative's Securities remain outstanding in the hands of the publicdealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will annually furnish to its shareholders a report you or mail to your order copies of its operations the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to include financial statements audited any such documents (including any documents incorporated or deemed incorporated by independent public accountantsreference therein) in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the International Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate (including those of Canada) and under the applicable securities laws of such other nations as you may designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the International Common Shares. The Company shall
(g) During the period of five years hereafter, the Company will furnish to the Underwriter Lead Managers and, upon request of the Lead Managers, to each of the other International Managers: (i) as soon as practicable after the end of each fiscal year, a copies of the Annual Report of the Company containing the balance sheet of the Company as at of the end close of such fiscal year, together with year and statements of operationsincome, shareholders' equityequity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and changes in cash flow (iii) as soon as available, copies of any report or communication of the Company for such fiscal year, all in reasonable detail and accompanied by a copy mailed generally to holders of the certificate or report thereon of independent public accountantsits Ordinary Shares.
(dh) It will deliver to you at or before During the Initial Closing Date three signed copies period of 90 days after the first date that any of the signature pages International Common Shares are released by you for sale to the Registration Statement and three copies public, without the prior written consent of either Montxxxxxx Xxxurities or each of the registration statement including all financial statements and exhibits filed therewithLead Managers (which consent may be withheld at the sole discretion of Montxxxxxx Xxxurities or the Lead Managers, whether or not incorporated by reference. The as the case may be), the Company will deliver not issue, offer, sell, grant options to you, from time to time until the effective date purchase or otherwise dispose of any of the ProspectusCompany's equity securities or any other securities convertible into or exchangeable with its Ordinary Shares or other equity security, as many copies of the Prospectus as you may reasonably request. The Company will deliver other than pursuant to you on the effective date of outstanding stock options and warrants disclosed in the Prospectus and thereafter for so long as a Prospectus is required to be delivered under other than the Act and grant of options or the Rules and Regulations as many copies issuance of the Prospectus, Company's equity securities pursuant to the Company's employee share option plans described in final form, the Prospectus or as thereafter amended or supplemented, as you may from time to time reasonably requestthe issuance of Ordinary Shares in connection with acquisitions.
(ei) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities International Common Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fj) As soon During such period as it a prospectus is practicable, but required by law to be delivered in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statementconnection with sales by an International Manager or dealer, the Company will make available file all documents required to its security holders and be filed with the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date Commission pursuant to Section 13, 14 or 15 of the Registration StatementExchange Act in the manner and within the time periods required by the Exchange Act. The Lead Managers, which shall satisfy the requirements of Section 11(a) on behalf of the Act and Rule 158(a) International Managers, may, in their sole discretion, waive in writing the performance by the Company of the Rules and Regulations.any one or more
Appears in 1 contract
Samples: International Underwriting Agreement (Flextronics International LTD)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective posteffective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. ,
(d) The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause arrange for the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date qualification of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities Units for offering and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following: (i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange; (ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and (iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)- month period beginning after the Effective Date of the Registration Statement.
(i) The Company will prepare and file with the SEC any required reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(j) After completion of the offering of the Units, the Company will make all filings required to maintain the quotation of the Common Stock and the Redeemable Warrants on The Nasdaq SmallCap Market, The Nasdaq National Market, or any national stock exchange. (k) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Choicetel Communications Inc /Mn/)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) of the Rules and Regulations and, if applicable, a term sheet as described in Rule 434(b)of the Rules and Regulations. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by all of the Underwriters of the distribution of the Stock contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective (the "Minimum Period"), the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Stock. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Stock for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It will cooperate in all respects in making Not later than the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofClosing Date, the Company will advise you, and confirm deliver to the advice in writing, Underwriters a conformed copy of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if in the provisions of Rule 430A promulgated under form that it or the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any most recent post-effective amendment thereto became effective, certified by an officer of the Company to be in such form.
(b) The Company will prepare a final term sheet, containing a description of the final terms of the Bonds and the offering thereof, in a form approved by the Representatives and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule.
(c) The Company will deliver to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment Underwriters as many copies of the Prospectus (and any amendments or for supplementing of supplements thereto) and each Issuer Free Writing Prospectus as the Underwriters may reasonably request.
(d) The Company will cause the Prospectus or for additional information to be filed with respect thereto, the Commission pursuant to and in compliance with Rule 424(b) (without reliance on Rule 424(b)(8) under the Securities Act) and will advise the Representatives promptly of the issuance of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement, any Issuer Free Writing Prospectus, the Basic Prospectus or the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and therefor or pursuant to Section 8A of the Securities Act of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and, and to secure the prompt removal thereof if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for .
(e) During such period of time as the Underwriters are required by law to deliver a prospectus (including in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any circumstances where such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, requirement may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or satisfied pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required 172 under the Act to be delivered in connection with the initial sale of the SecuritiesSecurities Act) after this Underwriting Agreement has become effective, the Option Securities and the Representative's Securities of if any event relating to or affecting the Company, or of which the Company has knowledge and which materially affects shall be advised by the Underwriters in writing, shall occur that in the Company, or the securities thereof, and which ’s opinion should be set forth in an amendment of or a supplement or amendment to the Prospectus or the Disclosure Package in order to make the statements therein Prospectus or the Disclosure Package not then misleading, misleading in the light of the circumstances existing at the time the Prospectus when it is required delivered (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act Securities Act) to be delivereda purchaser of the Bonds, or in case it shall be necessary to the Company will amend or supplement the Prospectus to comply or the Disclosure Package by either (i) preparing and filing with the Act, Commission and furnishing to the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you Underwriters a reasonable number of copies of such amended a supplement or supplements or an amendment or amendments to the Prospectus or the Disclosure Package, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of such the Exchange Act that will supplement to be attached to or amend the ProspectusProspectus or the Disclosure Package, in such quantities as you may reasonably request, in order that the Prospectusso that, as so amended supplemented or supplementedamended, it will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances when the Prospectus or the Disclosure Package is delivered (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which they are made. The preparation and furnishing case the Underwriters shall assume the expense of preparing any such amendment or supplement to supplement), the Prospectus or supplement to be attached to the Prospectus expenses of complying with this Section 6(e) shall be without expense to you. The borne by the Company will to until the best expiration of its ability comply with nine months from the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales time of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulationseffectiveness of this Underwriting Agreement, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds expenses shall be used, directly or indirectly, to acquire any securities issued borne by the Company, without the prior written consent of the UnderwriterUnderwriters thereafter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the The Company will make generally available to its security holders and the Underwriter holders, as soon as practicable, an earnings earning statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the “effective date of the Registration Statementregistration statement” within the meaning of Rule 158 under the Securities Act, which earning statement shall satisfy be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158(a158 under the Securities Act.
(g) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the “blue sky” laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(h) The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with the offering of the Bonds, including with respect to (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture or any other documents required to perfect the lien thereunder, if any, (iii) legal counsel relating to the qualification of the Bonds under the “blue sky” laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, any preliminary (and any supplemental) “blue sky” survey, the Basic Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (e) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies, (vi) the applicable Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso thereof [and][,]
(vii) [the listing of the Bonds on the New York Stock Exchange and (viii)] filings or other notices (if any) with or to, as the case may be, the Financial Industry Regulatory Authority (“FINRA”) in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for the (A) reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(i) The Company will not sell any additional First Mortgage Bonds or Collateral Trust Mortgage Bonds without the consent of the Representatives until after the earlier to occur of (i) the Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
(j) As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings, if any, necessary to perfect and preserve the lien of the Mortgage (including the rights under the Supplemental Indenture) and each applicable Class A Mortgage (including the rights under each applicable supplemental indenture in respect of the Class A Bonds (as defined in the Mortgage) delivered to the Trustee as the basis for the issuance of the Bonds under the Mortgage), and the Company will use its best efforts to cause to be furnished to the Underwriters, to the extent any recordings, registrations and filings are necessary, a supplemental opinion of counsel for the Company, addressed to the Underwriters, stating that all such recordings, registrations and filings have been made.
(k) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act, other than the final term sheet prepared and filed pursuant to Section 6(b) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses identified in Parts A and B of Schedule II hereto and any electronic road show identified in Part B of Schedule II hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and Regulations433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including, if applicable, in respect of timely filing with the Commission, legending and record keeping.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatthe Several ------------------------ Underwriters as follows:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Prepricing Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Prepricing Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
(b) It will cooperate promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to qualify cause the Securities and same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Option Securities and Company upon request, but at the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the effective date of the Registration Statement, Statement (as defined in Rule 158(c) of the Rules and Regulations) the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you and Regulationsthe Selling Stockholders or mail to your order copies of the Registration Statement, the Prospectus, the Prepricing Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholders may request, for the purposes contemplated by the Act.
(f) During the period of five years hereafter, the Company will furnish to the Representatives and, upon request of any Representative, to each of the other Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(g) During the period of 90 days after the first date that any of the Shares are released by you for sale to the public, without the prior written consent of Xxxxx Xxxxxx Inc. (which consent may be withheld at the sole discretion of Xxxxx Xxxxxx Inc.), the Company will not sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The foregoing sentence shall not apply to (A) shares of Common Stock issued by the Company upon the exercise of options granted, or to be granted in the ordinary course, under stock option plans of the Company or upon the exercise of outstanding warrants, all as described in footnote (1) to the table under the caption "Capitalization" in the Prepricing Prospectus, (B) shares of Common Stock purchased pursuant to the Company's employee stock purchase plan or (C) a maximum aggregate of _______ shares of Common Stock issued by the Company in connection with the acquisition of assets owned by another Company.
(h) The Company will apply the net proceeds of the sale of the Shares sold by it substantially in accordance with its statements under the caption Use of Proceeds in the Prospectus.
(i) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(j) The Company will use its best efforts to maintain (i) the Common Stock as a national market system security on the Nasdaq National Market or (ii) the listing of the Common Stock on the New York Stock Exchange or the American Stock Exchange.
(k) The Company will furnish to you, without charge (i) one copy of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to the Incorporated Documents.
(l) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(m) Notwithstanding any other provisions hereof, if this Agreement shall be terminated by you pursuant to Section 10, or if the sale to the Underwriters of the Shares on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company or the Selling Stockholders to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse you and the other Underwriters upon demand for all out-of-pocket expenses that shall have been reasonably incurred by you and them in connection with the proposed purchase and the sale of the Shares, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, telegraph charges and telephone charges relating directly to the offering contemplated by the Prospectus. Any such termination shall be without liability of any party to any other party except that the provisions of this Section 5(m), Section 9 and Section 11 shall at all times be effective and shall apply.
(n) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action in violation of law designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a) (3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities lawswill promptly prepare and file with the
(d) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(be) It During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer (the "Prospectus Delivery Period"), the Company, at its expense, but only for the nine-month period referred to in Section 10(a) (3) of the Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Securities and the Option Securities and the Representative's Securities Common Shares for initial sale under (or obtain exemptions from the application of) the Blue Sky or Canadian securities laws of such jurisdictions as you may designate designate, will comply with such laws and will make continue such applications qualifications, registrations and furnish such information exemptions in effect so long as may be reasonably required for that purpose, provided the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securitiesany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any will advise you promptly of the Securitiessuspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, the Option Securities sale or the Representative's Securities remain outstanding trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the hands event of the publicissuance of any order suspending such qualification, registration or exemption, the Company, at its expensewith your cooperation, will annually furnish use its best efforts to its shareholders a report obtain the withdrawal thereof.
(g) During the period of its operations to include financial statements audited by independent public accountantsfive years hereafter, and the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, a copies of the Annual Report of the Company containing the balance sheet of the Company as at of the end close of such fiscal year, together with year and statements of operationsincome, shareholders' equity, equity and changes in cash flow flows for the year then ended and the opinion thereon of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of Company's independent public accountants.; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form
(dh) It will deliver to you at or before During the Initial Closing Date three signed copies period of 90 days after the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies without the prior written consent of NationsBanc Montxxxxxx (xxich consent may be withheld at the sole discretion of NationsBanc Montxxxxxx), xhe Company will not other than pursuant to outstanding stock options and warrants disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Prospectus as you Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security; provided, however, that during such 90 day period the Company may reasonably request. The Company will deliver grant options to you on the effective date of the Prospectus and thereafter for purchase Common Stock to its employees under its stock option plans so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestsuch employees cannot exercise such options within such 90 day period.
(ei) The Company will apply the net proceeds from of the sale of the Securities and the Option Securities Common Shares sold by it substantially in accordance with its statements under the manner set forth under caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fj) As soon as it is practicable, but The Company will use its best efforts to qualify or register its Common Stock for sale in any event not later than non-issuer transactions under (or obtain exemptions from the first (lstapplication of) day the Blue Sky laws of the fifteenth State of California (15thand thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) full calendar month following The Company will provide all applicable notices and pay all necessary fees to The Nasdaq Stock Market in connection with the effective date issuance of the Registration StatementCommon Shares.
(l) During the Prospectus Delivery Period, the Company will make available file all documents required to its security holders and be filed with the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date Commission pursuant to Section 13, 14 or 15 of the Registration StatementExchange Act in the manner and within the time periods required by the Exchange Act. You, which shall satisfy the requirements of Section 11(a) on behalf of the Act and Rule 158(a) Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the Rules and Regulationsforegoing covenants or extend the time for their performance.
Appears in 1 contract
Samples: Underwriting Agreement (Suburban Lodges of America Inc)
Covenants of the Company. The Company hereby covenants and agrees with you that:
(a) It will cooperate Except with the prior written consent of the Co-Placement Agents, the Company shall not, at any time prior to the Closing, take any action which would cause any of the representations, warranties and covenants made by it in all respects this Agreement, the Memorandum or the Subscription Documents not to be complete, accurate and correct in making any material respect on and as of the Prospectus effective Closing Date with the same force and will effect as if such representations, warranties and covenants had been made on and as of such date.
(b) If, at any time prior to the Closing:
(i) any event shall occur which materially affects the Company or as a result of which it might become necessary to amend or supplement the Memorandum so that the representations, warranties and covenants contained herein or in the Transaction Documents remain materially true; or
(ii) in case it shall, in the opinion of counsel to the Co-Placement Agents and the Company, be necessary to amend or supplement the Memorandum to comply with Regulation D or any other applicable securities laws or regulations, the Company shall, in the case of (i) above, promptly notify the Co-Placement Agents and, in the event of either (i) or (ii) above shall, at its sole cost, prepare and furnish to the Co-Placement Agents copies of appropriate amendments and/or supplements to the Memorandum in such quantities as the Co-Placement Agents may request. The Company shall not at any time, whether before or after the effective dateClosing, file prepare or use any amendment to or supplement to the Prospectus Memorandum of which you the Co-Placement Agents shall not previously have been advised and furnished with a copy copy, or to which you the Co-Placement Agents or your their counsel shall will have reasonably objected in writing or orally (confirmed in writing within 72 hours), or which is not in compliance in all material compliance respects with the Act Securities Act, the Regulations and the Rules and Regulations or other applicable state lawsecurities laws. As soon as the Company is advised thereof, the Company will shall advise youthe C-Placement Agents and their counsel, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyMemorandum, or of the suspension of the qualification or registration of the Securities, the Option Securities for offering or the Representatives suspension of any exemption for such qualification or registration of the Securities for offering in any jurisdiction, or of the institution or threatened institution of any proceedings for any of such purposes, and will the Company shall use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as reasonably possible the lifting or dismissal thereof. .
(c) The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to shall comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActRegulations, the Exchange Act and Act, all applicable state securities laws and the rules and regulations thereunder in the states in which the Co-Placement Agents' counsel has advised the Co-Placement Agents that the Units are qualified or registered for sale or exempt from such qualification or registration, so as to permit the initial offer and continuance of the sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsUnits, and applicable state securities lawswill file with the SEC, and shall promptly thereafter forward to the Co-Placement Agents, any and all reports on Form D as are required.
(bd) It will cooperate The Company shall use its commercial best efforts to qualify the Securities and the Option Securities and the Representative's Securities Units for initial sale (or seek exemption therefrom) under the securities laws of such jurisdictions in the United States as you may designate be mutually agreed to by the Company and will the Co-Placement Agents, and the Company shall make such applications and furnish such information as may be required for that purposesuch purposes, provided that the Company shall not be required to qualify as a foreign corporation or a dealer in securitiesany jurisdiction. The Company willshall, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification qualifications in effect for so long a period as the Underwriter Co-Placement Agents may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will shall place a legend on the certificates representing the Common Stock, Warrants and the Warrant Shares issued to subscribers stating that the securities evidenced thereby have not been registered under the Securities Act or applicable state securities laws, setting forth or referring to the applicable restrictions on transferability and sale of such securities under the Securities Act and applicable state laws.
(f) The Company shall apply the net proceeds from the sale of the Securities and the Option Securities substantially Units for such purposes as are specifically described in the manner set forth under "Use of Proceeds" section of the Memorandum. Except as may be expressly and specifically set forth in the Prospectus. No portion "Use of Proceeds" section of the Memorandum, the net proceeds of the Offering shall not be used, directly or indirectly, used to acquire pay any securities issued by obligation and/or repay indebtedness of the Company, including, without limitation, indebtedness to officers, directors or stockholders of the Company without the prior written consent of the UnderwriterCo-Placement Agents.
(fg) As soon During the Offering Period, the Company shall afford prospective purchasers of Units an opportunity to ask questions of and receive answers from an officer of the Company concerning the terms and conditions of the Offering and the opportunity to obtain such other additional information necessary to verify the accuracy of the Memorandum to the extent it possesses such information or can acquire it without unreasonable expense.
(h) Except with the prior written consent of the Co-Placement Agents (which consent shall not be unreasonably withheld) or as it is practicableexpressly disclosed in the Memorandum, but the Company shall not, at any time prior to the Termination Date, engage in or commit to engage in any event not later than transaction outside the first ordinary course of business or issue, agree to issue or set aside for issuance any securities (lstdebt or equity) day or any rights to acquire any such securities except as expressly set forth in the Memorandum.
(i) Until the Termination Date, neither the Company nor any person or entity acting on its behalf shall negotiate with any other placement agent or underwriter with respect to a private or public offering of the fifteenth Company's debt or equity securities in the United States except to the extent that such a negotiation is contemplated in the Memorandum. Neither the Company nor anyone acting on its behalf shall, until the Termination Date, offer for sale to, or solicit offers to subscribe for Units from, or otherwise approach or negotiate in respect thereof with any other person.
(15thj) full calendar month following Until the effective date earlier of (i) the Registration StatementTermination Date and (ii) the Closing, the Company will make available not issue any press release, grant any interview, or otherwise communicate with the media in any manner whatsoever without the Co-Placement Agents' express prior written consent, unless in the reasonable judgment of the Company and its counsel, and after notification to its security holders the Co-Placement Agents, such press release or other communication is required by law.
(k) The Company shall pay all expenses incurred in connection with the preparation and printing of all necessary offering documents, amendments, and instruments related to the Offering and the Underwriter an earnings statement issuance of the Units, the Securities, the Warrant Shares and the Agent's Warrants, and shall also pay its own expenses for accounting fees, legal fees, bound volumes of closing documents, and other costs involved with the Offering. The Company shall provide at its own expense such quantities of the Memorandum and other documents and instruments relating to the Offering as the Co-Placement Agents may reasonably request. In addition, the Company shall pay all filing fees and costs for Blue Sky services and related filings and expenses of the Co-Placement Agents' counsel with respect to Blue Sky exemptions (collectively, the "Blue Sky Expenses"), which need shall be paid to the Co-Placement Agents' counsel upon the First Closing (or upon demand by the Co-Placement Agents if a First Closing does not incur within a reasonable period of time). Additional Blue Sky Expenses incurred after the First Closing, if any, shall be auditedpaid at any subsequent Closing, as applicable. The Blue Sky filings shall be prepared by the Co-Placement Agents' counsel for the Company's account. Further, as promptly as practicable after the Closing, the Company shall prepare, at its own expense, velobound "closing binders" relating to the Offering and will distribute such binders to the individuals designated by counsel to the Co-Placement Agents. Lastly, upon a determination by the Co-Placement Agents that one or more FINRA Rule 2710 filings are required, the Company will pay all filing fees costs and expenses in connection with such filing to be prepared by the Co-Placement Agents' counsel.
(1) covering On or before the Closing Date, the Company shall deliver to the Co-Placement Agents, lock up agreements (the "Lock Up Agreements") executed by among others, (i) the original shareholders of BCT; and (ii) the original shareholder of Forever Well (collectively, the "Shareholders") pursuant to which the Shareholders shall be prohibited from selling any shares of stock of the Company for a period of at least twelve (12) consecutive months beginning one year after the effective date of the Registration Statement.
(i) Effective as of the Closing Date, which the Co-Placement Agents (and/or their designee) shall satisfy have the requirements right to nominate, and the Company shall use its best efforts to have appointed, one (1) person (the "Placement Agent Director") to serve as a member of Section 11(aPubco's Board of Directors. The Company covenants and agrees to take, or to cause to be taken on its behalf, all action necessary and/or reasonably requested by the Co-Placement Agents to cause the Placement Agent Director to be appointed to the Board of Directors within ten (10) business days of the Placement Agent's nomination of such person. The Placement Agent Director's appointment to Pubco's Board of Directors shall be for a period of two (2) years commencing on the date of such person's appointment to the Board of Directors.
(ii) In the event that at any time and/or from time to time, a Placement Agent Director is not serving as a Director on Pubco's Board of Directors for any reason or no reason, then the Placement Agent may designate one (1) person (the "Observer") to attend all meetings (including telephone meetings) of Pubco's Board of Directors for a two (2) year period, commencing on the Act Closing Date. The Observer shall be entitled to attend all such meetings and Rule 158(ato receive all notices and other correspondence and communications sent by Pubco to its Board of Directors as when and in the same manner as provided to the other Directors; provided, however. the Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided, further, that Pubco reserves the right to withhold any information and to exclude the Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between Pubco and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the Observer is a competitor of Pubco.
(m) During the one (1) year period following the final Closing, the Company shall not file and/or issue any shares of the Rules and RegulationsCommon Stock pursuant to an S-8 Registration Statement.
Appears in 1 contract
Samples: Co Placement Agent Agreement (China BCT Pharmacy Group, Inc.)
Covenants of the Company. The Company covenants and agrees with you ------------------------ the Underwriters that:
(a) It If the Registration Statement has not yet been declared effective the Company will cooperate in all respects in making use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus effective and will not at any time, whether before is otherwise required under Rule 424(b) or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofRule 434, the Company will advise youfile the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and confirm file a term sheet that complies with the advice in writing, requirements of the receipt of any comments of the Commission or any state securities department, Rule 434.
(i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, post- effective amendment thereto or of the suspension of the qualification of the Securitiesinitiation, the Option Securities or the Representatives Securities for offering in any jurisdictionthreatening, or of the institution of any proceedings for therefor and (v) of the receipt of any such purposescomments from the Commission. If the Commission shall propose or enter a stop order at any time, and the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or be filed pursuant to Rule 424(b)(3424(b)or Rule 434) not later than that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of the happening, Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, the Company will notify you promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Prospectus or supplement Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to be attached to you two conformed copies of the Prospectus shall be without expense to youRegistration Statement, including exhibits and all amendments thereto, and will maintain in the Company's files manually signed copies of such documents for at least five years from the date of filing. The Company will promptly deliver to each of the best Underwriters such number of its ability comply with the Actcopies of any preliminary prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities and the Representatives Securities under the ActRegistration Statement, the Rules and RegulationsOffering Memorandum, and applicable state securities lawsall amendments of and supplements to such documents, if any, as you may reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company be obligated in connection therewith to qualify as at the end a foreign corporation or to execute a general consent to service of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceprocess. The Company will deliver to you, from time to time until the effective date promptly advise you of the Prospectus, as many copies receipt by the Company of any notification with respect to suspension of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date qualification of the Prospectus Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and thereafter for so long will use every reasonable effort to obtain the withdrawal of any order of suspension as a Prospectus is required to be delivered under the Act and the Rules and Regulations soon as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestpossible.
(e) The Company will apply make generally available (within the net proceeds from the sale meaning of Section 11(a) of the Securities Act) to its security holders and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As you as soon as it is practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first (lst) day anniversary date of the fifteenth (15th) full calendar month following the effective date of the Registration StatementStatement occurs, the Company will make available to its security holders and the Underwriter an earnings earning statement (which need not be auditedin form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement.
(f) The Company shall engage and maintain, which at its expense, a registrar and transfer agent for the Common Stock.
(g) The Company shall satisfy cause to be prepared and delivered, at its expense, within one business day from the requirements effective date of Section 11(a) this Agreement, to Bear, Xxxxxxx & Co. Inc., BancBoston Xxxxxxxxx Xxxxxxxx, CIBC Xxxxxxxxxxx Corp., and First Union Capital Markets an "electronic Prospectus" to be used by the Underwriters in connection with the offering and sale of the Act Shares. As used herein, the term "electronic Prospectus" means a form of Prospectus, and Rule 158(a) any amendment or supplement thereto, that meets each of the Rules following conditions: (i) it shall be encoded in an electronic format, satisfactory to Bear, Xxxxxxx & Co. Inc., that may be transmitted electronically by Bear, Xxxxxxx & Co. Inc. and Regulationsthe other Underwriters to offerees and purchasers of the Shares for at least during the period when the Prospectus is required to be delivered under the Act or the Exchange Act ("the Prospectus Delivery Period"); (ii) it shall disclose the same information as the paper Prospectus and Prospectus filed pursuant to XXXXX, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to Bear, Xxxxxxx & Co. Inc., that will allow investors to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the system as a whole and for on-line time). Such electronic Prospectus may consist of a Rule 434 preliminary prospectus, together with the applicable term sheet, provided that it otherwise satisfies the format and conditions described in the immediately preceding sentence. The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to XXXXX or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the Prospectus Delivery Period, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you ------------------------ that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any written or oral comments of the Commission or its staff, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, written or oral request of the effectiveness Commission or its staff for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereofpracticable. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file will fully and completely comply with the Prospectus provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule.
(in form and substance satisfactory c) Within the time during which a prospectus relating to the Underwriter) Common Shares is, in the opinion of counsel for the Underwriters or transmit counsel for the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this AgreementCompany, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, sales by an Underwriter or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other lawdealer, the Company will forthwith prepare comply with all requirements imposed upon it by the Act and furnish by the Rules and Regulations, as from time to you copies time are in force, so far as necessary to permit the continuance of sales of or dealings in the Common Stock as contemplated by the provisions hereof and the Prospectus. If during such amended Prospectus or period any event occurs as a result of such supplement to be attached to which the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are made. The preparation then existing, not misleading, or if during such period it is necessary at any time to amend the Registration Statement, including any amendments or supplements, to comply with the Act or the Rules and furnishing of any such Regulations, the Company will promptly notify you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement to the Registration Statement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Company upon request, but at the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you and Regulationsthe Selling Shareholders or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Shareholders may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the blue sky laws of such United States and Canadian jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the consolidated balance sheet of the Company as of the close of such fiscal year and consolidated statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Xxxxxxxxxx Securities (which consent may be withheld at the sole discretion of the Xxxxxxxxxx Securities), the Company will not other than (i) pursuant to the exercise of outstanding stock options or the grant or the issuance of options or shares pursuant to stock option or stock purchase plans (which vest or become exercisable after the expiration of such 90-day period) disclosed in the Prospectus, or (ii) issuances of equity securities as consideration for the acquisition of any business provided the shares so issued may not be resold within such 90-day period, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the blue sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such blue sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will use its best efforts to cause the Common Stock to be quoted on the Nasdaq National Market. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Samples: Underwriting Agreement (Information Management Resources Inc)
Covenants of the Company. The Company further covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus Registration Statement to become effective and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you or your counsel the Underwriter shall have reasonably objected in writing or which is not in material compliance with the Act and Act, or the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, thereunder.
(b) The Company will notify the Underwriter immediately and confirm in writing (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of and any post-effective amendment to the Registration Statement or Prospectusthereto becomes effective, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, (ii) of the issuance 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 of the Prospectus or of the initiation of any proceedings for such purposes, and (iii) of the receipt of any comments (in writing or orally) from the Commission in respect of the Registration Statement or Prospectus. If the Commission shall enter a stop order or any order preventing or suspending the use of any Preliminary Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in Prospectus at any jurisdictiontime, or of the institution of shall initiate any proceedings for any such purposespurpose, and the Company will use its best efforts make every reasonable effort to prevent the issuance of any such order and, and if issued, to obtain as soon as possible the lifting or dismissal withdrawal thereof. The Company has caused .
(c) Within the time during which a prospectus relating to the Shares is required to be delivered to you copies of such Prospectusunder the Act, the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with Regulations of the statesCommission thereunder, promptly upon your requestfrom time to time in force, any such amendments so far as necessary to permit the continuance of sales or supplements to the Prospectus, and take any other action, as, dealings in the opinion Shares, (or the Warrant Shares to be acquired upon the exercise of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities Warrants) as contemplated by the provisions hereof and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form Prospectus; and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within if during such period any event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, Prospectus as then amended or the securities thereof, and which should be set forth in supplemented would include an amendment untrue statement of a material fact or a supplement omit to the Prospectus in order state any material fact necessary to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under the Act to be deliveredthen existing, not misleading, or in case if during such period it shall be is necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare promptly notify the Underwriter and will amend or supplement the Prospectus (in form reasonably satisfactory to your counsel and at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will cooperate with the Underwriter and will take all necessary action, and furnish to you copies of whomever the Underwriter may direct such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectusproper information, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact may be lawfully required to be stated therein or necessary to make in qualifying the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities Shares and the Representatives Securities under the Act, the Rules Warrant Shares for offering and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws or blue sky law of such jurisdictions states as you the Underwriter may designate designate, and will make in continuing such applications and furnish such information qualifications in effect so long as may be required for the distribution; provided that purpose, provided the Company shall not be required obligated to qualify as a foreign corporation to do business under the laws of any such state or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required submit to continue such qualification in effect for so long as the Underwriter may any requirements which it reasonably requestdeems unduly burdensome.
(ce) So long as The Company will pay any of and all fees, taxes and expenses incident to the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report performance of its operations to include financial statements audited by independent public accountantsobligations under this Underwriting Agreement, including, but not limited to: (i) expenses and will furnish taxes
(iii) expenses and filing fees incident to the Underwriter as soon as practicable after preparation, printing, delivery, shipment and filing with the end Commission and state blue sky authorities of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies all exhibits thereto and the Prospectus, and any amendments or supplements thereto; (iv) fees of blue sky counsel (which counsel is to be designated by the Underwriter and who may be Underwriter's counsel) to cover the fees attendant to the qualification of the registration statement including Shares in those states or jurisdictions reasonably agreed to by counsel for the Company and counsel for the Underwriter (it hereby being agreed by the Company that a minimum of twenty (20) states is deemed to be reasonable); (v) advertising costs and expenses in connection with any "road show", information meetings and presentations, bound volumes and prospectus memorabilia and "tombstone" advertisement expenses; (vi) fees and expenses of the transfer agent and registrar, (vii) the fees payable to the Commission and the National Association of Securities Dealers, Inc. ("NASD"). It is expressly understood by and between the parties hereto that if this Agreement is terminated by the Underwriter pursuant to Section 9(b), the Company shall reimburse and indemnify the Underwriter for all financial statements and exhibits filed therewith, whether or not incorporated by referenceof its actual out-of-pocket expenses. The Company will deliver also agrees that if the Closing Date has not occurred by the 90th day following the Effective Date and the Company then elects not to youextend the Offering Period, from time to time until as provided in Section 3(a), despite the effective date willingness of the ProspectusUnderwriter to so extend the Offering Period, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter shall be liable for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, all expenses identified in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestthis Section 4(e).
(ef) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Shares substantially in the manner as set forth under the caption "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the ------------------------- Agent that:
(a) It will cooperate in all respects in making 6.1 After the Prospectus effective and date hereof, the Company will not at any time, whether before or after the effective date, file prepare and distribute any amendment to or supplement to the Prospectus Offering Documents, of which you amendment or supplement the Agent shall not previously have been advised and the Agent and its counsel furnished with a copy within a reasonable time period prior to the proposed adoption thereof, or to which you or your counsel the Agent shall have reasonably reasonable objected or which in writing on the ground that it is not in material compliance with the Act and or the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective (if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. applicable).
6.2 The Company will prepare pay, whether or not the transactions contemplated hereunder are consummated or this Agreement is prevented from becoming effective or is terminated, all costs and file with expenses incident to the statesperformance of its obligations under this Agreement, promptly upon your requestincluding all expenses incident to the authorization of the Securities and their issue and delivery to the Agent, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable original issue taxes in connection with therewith, all transfer taxes, if any, incident to the initial sale of the Securities, the Option Securities fees and expenses of the UnderwriterCompany's Securities counsel (except as provided below} and will use its best efforts to cause accountants, the same to become effective as promptly as possible. The Company shall file the Prospectus (in form cost of reproduction and substance satisfactory furnishing to the Underwriter) or transmit Agent copies of the Prospectus Offering Documents as herein provided.
6.3 As a condition precedent to the Initial Closing, the Company will deliver to the Agent a true and correct copy of the Articles of Incorporation of the Company, and all amendments and certificates of designation of preferences of preferred stock, including without limitation the certificate of designation of preferences regarding the Securities, certified by a means reasonably calculated the Secretary of State of Delaware.
6.4 Prior to result in filing the Closing Date, the Company will cooperate with the Commission pursuant Agent in such investigation as it may make or cause to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close be made of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date all of the Registration Statement. In case properties, business and operations of the happening, at any time within such period as a Prospectus is required under the Act to be delivered Company in connection with the initial sale Offering of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to it in connection therewith such information in its security holders possession as the Agent may reasonably request and will make available to the Underwriter an earnings statement (which need not Agent such persons as the Agent shall deem reasonably necessary and appropriate in order to verify or substantiate any such information so supplied.
6.5 The Company shall be audited) covering a period of at least twelve (12) consecutive months beginning after responsible for making any and all filings required by the effective date Blue Sky authorities and filings required by the laws of the Registration Statementjurisdictions in which the subscribers who are accepted for purchase of Securities are located, which if any. Agent shall satisfy assist Company in this respect, but such filings shall be the requirements responsibility of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsCompany.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you each Underwriter that:
(a) It will cooperate in all respects in making If the Prospectus effective and will not at any timeEffective Date is on or before the date of this Agreement, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you Company shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance comply with the Act provisions of and make all requisite filings with the Commission pursuant to Rule 424(b) not later than the Commission's close of business on the second Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations or applicable state lawRegulations. As soon as the The Company is advised thereof, the Company will shall advise you, and confirm the advice in writingpromptly after it receives notice thereof, of the receipt of any comments of the Commission or any state securities departmenttime when, when the Registration Statement becomes effective if the provisions Effective Date is on or before the date of Rule 430A promulgated under the Act will be relied uponthis Agreement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement has been filed or Prospectus, becomes effective or the filing of any supplement to the Prospectus or any amended Prospectus, Prospectus has been filed. The Company shall notify you promptly of any request made by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information; the Company shall prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or the Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Debentures; and the Company shall not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Debentures by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof, such consent not to be unreasonably withheld or delayed. The Company shall advise you promptly of the issuance by the Commission or any state securities department for amendment of the Prospectus State or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance other regulatory body of any stop order or other order suspending the effectiveness of the Prospectus Registration Statement, suspending or any order preventing or suspending the use of any Preliminary Prospectus or any order the Prospectus or suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Debentures for offering or sale in any jurisdiction, or of the institution of any proceedings for any such purposes, purpose; and will the Company shall use its best efforts to prevent the issuance of any stop order or other such order and, if should a stop order or other such order be issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the The Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders each of you and to counsel for the Underwriters a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a signed copy of the certificate or report thereon of independent public accountants.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement as originally filed and three copies of each amendment thereto filed with the registration statement Commission, including all financial statements consents and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver and shall furnish to you, from time to time until the effective date Underwriters such number of the Prospectus, as many conformed copies of the Prospectus Registration Statement, as you may reasonably request. The Company will deliver to you on the effective date of originally filed and each amendment thereto (excluding exhibits other than this Agreement), the Prospectus and thereafter for so long as a Prospectus is required all amendments and supplements to any of such documents (including any document filed under the Exchange Act and deemed to be delivered under incorporated by reference in the Act and the Rules and Regulations as many copies of the Preliminary Prospectus or Prospectus), in final form, or each case as thereafter amended or supplemented, soon as available and in such quantities as you may from time to time reasonably request.
(ec) Within the time during which the Prospectus relating to the Debentures is required to be delivered under the Securities Act, the Company shall comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Debentures as contemplated by the provisions hereof and by the Prospectus. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus or file any document to comply with the Securities Act, the Company shall promptly notify you and shall, subject to Section 4(a) above, amend the Registration Statement or supplement the Prospectus or file any document (at the expense of the Company) so as to correct such statement or omission or to effect such compliance.
(d) The Company will shall take or cause to be taken all necessary action and furnish to whomever you may direct such information as may be required in qualifying the Debentures for offering and sale under the laws of such jurisdictions as you shall designate, and to continue such qualifications in effect for as long as may be necessary for the distribution of the Debentures; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction where it is not currently so subject.
(e) As soon as practicable, the Company shall make generally available to its security holders (and shall deliver to you) an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(f) Whether or not this Agreement becomes effective or is terminated or the sale of the Debentures to the Underwriters is consummated, the Company shall pay or cause to be paid (A) all fees and expenses (including, without limitation, all registration and filing fees and fees and expenses of the Company's accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus, the Indenture, the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed with the Commission (the "Form T- 1") and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing and the copying, delivery and shipping of this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the Debentures (including the cost of printing the Debentures), (C) all filing fees and fees and disbursements of counsel to the Underwriters incurred in connection with the qualification of the Debentures under state securities or Blue Sky laws as provided in Section 4(d) hereof, (D) any fees required to be paid to rating agencies incurred in connection with the rating of the Debentures, (E) the fees, costs and charges of the Trustee, including the fees and disbursements of counsel for the Trustee, and (F) all other costs and expenses incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters shall pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses incurred in connection with any offers they may make. If the sale of the Debentures provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 8 hereof which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed or because any other condition of the Underwriters' obligations hereunder is not fulfilled or if the Underwriters shall decline to purchase the Debentures for any reason permitted under this Agreement other than by reason of a default by any of the Underwriters pursuant to Section 7, the Company shall reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with any investigation or preparation made by them in respect of the marketing of the Debentures or in contemplation of the performance by them of their obligations hereunder.
(g) During the period of one year from the Closing Date, the Company shall furnish to the Underwriters, copies of all reports or other communications furnished to stockholders and copies of any reports or financial statements furnished to or filed with the Commission or the New York Stock Exchange (the "NYSE") or any other national securities exchange or association on which any class of securities of the Company is quoted or listed, and the Company shall furnish to the Underwriters copies of all reports and other communications furnished to the Noteholders.
(h) Until termination of the offering of the Debentures, the Company shall timely file all documents and amendments to previously filed documents required to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act.
(i) The Company shall apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner Debentures as set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (NGC Corp)
Covenants of the Company. The Company hereby covenants and agrees with you to the Underwriter that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise youthe Underwriter, and confirm the advice in writingpromptly after receiving notice thereof, of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if Preliminary Prospectus, the provisions of Rule 430A promulgated under the Act will be relied upon, when the Final Prospectus and any Supplementary Material has been filed in accordance with said Rule 430Aand receipts therefor have been obtained pursuant to NP 11-202 and will provide evidence reasonably satisfactory to the Underwriter of each such filing and copies of such receipts;
(b) the Company will advise the Underwriter, of promptly after receiving notice or obtaining knowledge thereof, of:
(i) the effectiveness issuance by any applicable securities regulatory authority of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or Offering Document;
(ii) the issuance by any applicable securities regulatory authority of any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the SecuritiesOffered Shares, the Over-Allotment Option Securities or the Representatives Securities for offering Broker Warrants in any jurisdiction, or of the institution Qualifying Jurisdictions, suspending the distribution of the Offered Shares, the Over-Allotment Option or the Broker Warrants or suspending the trading of any proceedings securities of the Company;
(iii) the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any applicable securities regulatory authority for amending or supplementing any Offering Document or for additional information, and will use its best efforts to prevent the issuance of any such order referred to in (i) or (ii) above and, if any such order is issued, to obtain the withdrawal thereof as soon quickly as possible possible;
(c) until completion of distribution of the lifting Offered Shares, the Company will promptly take, or dismissal thereof. The Company has caused cause to be delivered taken, all commercially reasonable additional steps and proceedings that may from time to you copies time be required under Canadian Securities Laws to continue to qualify the distribution of such Prospectusthe Offered Shares, the Over-Allotment Option and the Broker Warrants in the Qualifying Jurisdictions or, in the event that the Offered Shares, the Over-Allotment Option or the Broker Warrants have, for any reason, ceased so to qualify, to so qualify again for distribution in the Qualifying Jurisdictions;
(d) the Company will ensure that the necessary regulatory and third party consents, approvals, permits and authorizations, including under applicable Securities Laws, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus legal requirements in connection with the sale transactions contemplated by this Agreement are obtained or fulfilled on or prior to the Closing Date and will make all necessary filings (including post-closing filings pursuant to applicable Securities Laws, including the "blue sky laws" in the United States and the rules and policies of the SecuritiesTSXV), the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is take or cause to be taken all action required to comply with be taken by the applicable provisions of the Act Company and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements pay all filing fees required to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable paid in connection with the initial sale of transactions contemplated by this Agreement;
(e) the Securities, the Option Securities and the Underwriter's Securities and Company will use its best efforts to cause maintain its status as a "reporting issuer" (or the same to become effective as promptly as possible. The Company shall file equivalent thereof) not in default of the Prospectus (in form and substance satisfactory requirements of Canadian Securities Laws of each of the Qualifying Jurisdictions to the Underwriter) or transmit date that is two years following the Prospectus by a means reasonably calculated to Closing Date, provided that this covenant shall not prevent the Company from completing any transaction which would result in filing the Company ceasing to be a "reporting issuer" so long as the holders of the Common Shares receive securities of an entity which is listed on a stock exchange in Canada and/or the United States or cash, or the holders of the Common Shares have approved the transaction in accordance with the Commission pursuant requirements of applicable corporate and securities laws and the rules and policies of the TSXV (or any securities exchange, market or trading or quotation facility on which the Common Shares are then listed or quoted);
(f) the Company will use its best efforts to rule 424(b)(1maintain the listing of the Common Shares (including the Offered Shares and the Broker Warrant Shares) or pursuant to Rule 424(b)(3) not later than the Commission's close of business for trading on the earlier TSXV or such other recognized securities exchange, market or trading or quotation facility as the Underwriter may approve, acting reasonably, and comply with the rules and policies of the TSXV or such other exchange, market or facility to the date that is two years following the Closing Date, provided that this covenant shall not prevent the Company from transferring its listing to the Toronto Stock Exchange or completing any transaction which would result in the Common Shares ceasing to be listed so long as the holders of the Common Shares receive securities of an entity which is listed on a stock exchange in Canada and/or the United States or cash, or the holders of the Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the TSXV (or any securities exchange, market or trading or quotation facility on which the Common Shares are then listed or quoted);
(g) the Company will ensure that the Offered Shares upon issuance shall be duly and validly authorized and issued as fully paid and non-assessable Common Shares;
(h) the Company will ensure that the Broker Warrants upon issuance shall be duly and validly created, authorized and issued and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Broker Warrant Certificates;
(i) the second business day following Company will duly execute and deliver the execution Broker Warrant Certificates at the Closing Time and delivery of this Agreementthe Option Closing Time, as applicable, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happeningcomply with and satisfy all terms, at any time within such period as a Prospectus is required under the Act conditions and covenants therein contained to be delivered in connection complied with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects or satisfied by the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, ;
(j) the Company will forthwith prepare ensure, at all times until the date that is 24 months following the Closing Date, that sufficient Broker Warrant Shares are authorized and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light allotted for issuance upon due and proper exercise of the circumstances under which they are madeBroker Warrants. The preparation and furnishing Broker Warrant Shares, upon issuance in accordance with the terms of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus Broker Warrant Certificates, shall be without expense to you. The duly and validly issued as fully paid and non-assessable Common Shares;
(k) the Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be usednot, directly or indirectly, issue or sell any Common Shares or financial instruments convertible or exercisable into Common Shares or announce any intention to acquire any securities issued by do so until the Company, date which is 90 days after the Closing Date without the prior written consent of the Underwriter., such consent not to be unreasonably withheld or delayed, except in conjunction with: (i) the grant or exercise of stock options and other similar issuances, in each case pursuant to the share incentive plan of the Company and other share compensation arrangements, (ii) the exercise of outstanding warrants, (iii) obligations of the Company in respect of existing mineral property agreements, (iv) pursuant to the Offering, including the Over-Allotment Option, and (v) the issuance of securities by the Company in connection with property or share acquisitions in the normal course of business;
(fl) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available use its best efforts to cause each of its security holders directors, officers and principal shareholders to enter into lock-up agreements in a form satisfactory to the Company and the Underwriter an earnings statement (Underwriter, in both cases acting reasonably, which need not shall be audited) covering negotiated in good faith and contain customary provisions, pursuant to which each such person agrees, among other things, to not, for a period of at least twelve 90 days from the Closing Date, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, or otherwise dispose of, or transfer, or announce any intention to do so, any Common Shares, whether now owned (12or hereinafter acquired) consecutive months beginning after directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, or enter into any transaction or arrangement that has the effective date effect of transferring, in whole or in part, any of the Registration Statementeconomic consequences of ownership of Common Shares, which shall satisfy whether such transaction is settled by the requirements delivery of Section 11(a) Common Shares, other securities, cash or otherwise other than pursuant to a take-over bid or any other similar transaction made generally to all of the Act and Rule 158(a) shareholders of the Rules Company. For clarity, the lock-up agreements referred to in this Section 6(l) shall not preclude the holders of convertible securities of the Company from converting or exercising the convertible securities of the Company they may hold into the underlying securities of the Company, whereupon the securities issued to such holders upon conversion or exercise shall be subject to the lock-up agreements;
(m) the Company will apply the net proceeds of the Offering in the manner specified in the Final Prospectus; provided that the Underwriter hereby acknowledges that there may be circumstances where, for sound business reasons, a re-allocation of funds may be necessary or advisable;
(n) the Company will fulfil or cause to be fulfilled, at or prior to the Closing Time or the Option Closing Time, as applicable, each of the conditions set out in Sections 9 and Regulations10;
(o) the Company will ensure that the Offered Shares, the Over-Allotment Option and the Broker Securities have the attributes corresponding in all material respects to the description thereof set forth in the Prospectus; and
(p) the Company and Canam will continue to perform all obligations (including all necessary work and payment obligations) in a timely manner (and in accordance with all applicable work program progress and payment schedules or requirements) under the Xxxxxx Option Agreements and will continue to operate in accordance with the terms of and remain in compliance with all terms and conditions contained in each Xxxxxx Option Agreement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatthe Underwriter as follows:
(a) It The Company will cooperate in all respects in making endeavor to cause the Prospectus Registration Statement to become effective and will not at any timeadvise you promptly and, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise if requested by you, and will confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponeffective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective amendment request by the Commission for amendments or supplements to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, Registration Statement or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 7(e) below, of the institution happening of any proceedings for event that makes any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as statement made in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments Registration Statement or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain ) untrue in any untrue statement material respect or that requires the making of a material fact any addition to or omit change in the Registration Statement or the Prospectus (as then amended or supplemented) to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light or of the circumstances under which they are made. The preparation and furnishing of any such amendment necessity to amend or supplement to the Prospectus (as then amended or supplement supplemented) to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Exchange Act and applicable state securities laws so as Company will make every reasonable effort to permit obtain the initial offer and sales withdrawal of such order at the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsearliest possible time.
(b) It The Company will cooperate furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to qualify it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Securities Registration Statement (without exhibits) as originally filed and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions each amendment thereto as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as The Company will not file any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish amendment to the Underwriter as soon as practicable Registration Statement or make any amendment or supplement to the Prospectus of which you shall not have been advised previously or to which you shall reasonably object in writing promptly after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsbeing so advised.
(d) It will deliver Prior to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company has delivered or will make available deliver to its security holders you, without charge, in such quantities as you have requested or may hereafter XxXxxxxx & Company, Inc. , 2006 reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter an earnings statement (which need not and by selected dealers to whom Shares may be audited) covering a period of at least twelve (12) consecutive months beginning after sold, prior to the effective date of the Registration Statement, of each preliminary Prospectus so furnished by the Company.
(e) On the effective date of the Registration Statement and thereafter from time to time, for such period as in the opinion of counsel for the Underwriter a prospectus is required by law to be delivered in connection with sales by an Underwriter or a selected dealer, the Company will deliver to you and each selected dealer through whom Shares may be sold without charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers through whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply in all material respects with the Securities Act or any other law, the Company at its own expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each selected dealer through whom Shares may be sold without charge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and Rule 158(aany applicable regulation.
(h) During the period of five years after the Closing Date, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Rules Company mailed to shareholders or filed with the Commission, unless otherwise publicly available on XXXXX, and Regulations.(ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request. XxXxxxxx & Company, Inc. , 2006
Appears in 1 contract
Samples: Underwriting and Advisory Agreement (CNB Bancorp Inc/Va)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It will cooperate in all respects in making Not later than the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofClosing Date, the Company will advise you, and confirm deliver to the advice in writing, Underwriters a conformed copy of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if in the provisions of Rule 430A promulgated under form that it or the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any most recent post-effective amendment thereto became effective, certified by an officer of the Company to be in such form.
(b) The Company will prepare a final term sheet, containing a description of the final terms of the Bonds and the offering thereof, in a form approved by the Representatives and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule.
(c) The Company will deliver to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment Underwriters as many copies of the Prospectus (and any amendments or for supplementing of supplements thereto) and each Issuer Free Writing Prospectus as the Underwriters may reasonably request.
(d) The Company will cause the Prospectus or for additional information to be filed with respect thereto, the Commission pursuant to and in compliance with Rule 424(b) (without reliance on Rule 424(b)(8) under the Securities Act) and will advise the Representatives promptly of the issuance of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement, any Issuer Free Writing Prospectus, the Basic Prospectus or the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and therefor or pursuant to Section 8A of the Securities Act of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and, and to secure the prompt removal thereof if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for .
(e) During such period of time as the Underwriters are required by law to deliver a prospectus (including in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any circumstances where such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, requirement may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or satisfied pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required 172 under the Act to be delivered in connection with the initial sale of the SecuritiesSecurities Act) after this Underwriting Agreement has become effective, the Option Securities and the Representative's Securities of if any event relating to or affecting the Company, or of which the Company has knowledge and which materially affects shall be advised by the Underwriters in writing, shall occur that in the Company, or the securities thereof, and which ’s opinion should be set forth in an amendment of or a supplement or amendment to the Prospectus or the Disclosure Package in order to make the statements therein Prospectus or the Disclosure Package not then misleading, misleading in the light of the circumstances existing at the time the Prospectus when it is required delivered (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act Securities Act) to be delivereda purchaser of the Bonds, or in case it shall be necessary to the Company will amend or supplement the Prospectus to comply or the Disclosure Package by either (i) preparing and filing with the Act, Commission and furnishing to the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you Underwriters a reasonable number of copies of such amended a supplement or supplements or an amendment or amendments to the Prospectus or the Disclosure Package, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of such the Exchange Act that will supplement to be attached to or amend the ProspectusProspectus or the Disclosure Package, in such quantities as you may reasonably request, in order that the Prospectusso that, as so amended supplemented or supplementedamended, it will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances when the Prospectus or the Disclosure Package is delivered (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which they are made. The preparation and furnishing case the Underwriters shall assume the expense of preparing any such amendment or supplement to supplement), the Prospectus or supplement to be attached to the Prospectus expenses of complying with this Section 6(e) shall be without expense to you. The borne by the Company will to until the best expiration of its ability comply with nine months from the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales time of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulationseffectiveness of this Underwriting Agreement, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds expenses shall be used, directly or indirectly, to acquire any securities issued borne by the Company, without the prior written consent of the UnderwriterUnderwriters thereafter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the The Company will make generally available to its security holders and the Underwriter holders, as soon as practicable, an earnings earning statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the “effective date of the Registration Statementregistration statement” within the meaning of Rule 158 under the Securities Act, which earning statement shall satisfy be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158(a158 under the Securities Act.
(g) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the “blue sky” laws of such jurisdictions as the Underwriters may reasonably designate; provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(h) The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with the offering of the Bonds, including with respect to (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Mortgage or any other documents required to perfect the lien thereunder, if any, (iii) legal counsel relating to the qualification of the Bonds under the “blue sky” laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, any preliminary (and any supplemental) “blue sky” survey, the Basic Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (e) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies, (vi) the applicable Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso thereof [and][,]
(vii) [the listing of the Bonds on the New York Stock Exchange and (viii)] filings or other notices (if any) with or to, as the case may be, the Financial Industry Regulatory Authority (“FINRA”) in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for the (A) reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(i) The Company will not sell any additional First Mortgage Bonds without the consent of the Representatives until after the earlier to occur of (i) the Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
(j) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act, other than the final term sheet prepared and filed pursuant to Section 6(b) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses identified in Parts A and B of Schedule II hereto and any electronic road show identified in Part B of Schedule II hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and Regulations433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including, if applicable, in respect of timely filing with the Commission, legending and record keeping.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, a registration statement pursuant to Rule 462(b) of the Rules and Regulations related to the Common Shares and any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file will fully and completely comply with the Prospectus provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule.
(c) The Company will immediately notify you in form and substance satisfactory writing if, at any time prior to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier earliest of (i) the second business day following the execution and delivery of this AgreementSecond Closing Date on which all remaining Optional Common Shares are purchased, and (ii) the fifth business day cancellation of the options to purchase the Optional Common Shares as provided herein, and (iii) of the expiration of the options to purchase the Optional Common Shares as provided herein, any representation or warranty of the Company set forth herein shall not be true and accurate in all material respects or, without limiting the foregoing, if there shall have been any material adverse change, or a development involving a material adverse change, in the condition (financial or otherwise), properties, business, results of operations or prospects of the Company.
(e) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement. In case " (as defined in Rule 158(c) of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(f) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a) (3) of the Rules Act, will furnish to you and Regulationsthe Selling Stockholders or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholders may request, for the purposes contemplated by the Act.
(g) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(h) During the period of five years hereafter, the Company will furnish to the Representatives and, upon the request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(i) During the period of 180 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Montxxxxxx Xxxurities (which consent may be withheld at the sole discretion of Montxxxxxx Xxxurities), the Company will not other than pursuant to the Company's stock option plans or warrants disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security.
(j) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(l) The Company will use its best efforts to designate the Common Stock for listing on the Nasdaq National Market.
(m) The Company will maintain a transfer agent and registrar for its Common Stock. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Units for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow, and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) The Company will prepare and file with the SEC any required reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(j) After completion of the offering of the Units, the Company will make all filings required to maintain the quotation of the Common Stock and the Redeemable Warrants on the Nasdaq National Market or any national stock exchange.
(k) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units being sold by it substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion of .
(l) During the proceeds shall be usedLock-Up Period, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly effect the Disposition of any securities including, without limitation, any securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any securities that are convertible into or exchangeable or exercisable for Common Stock, except for the sale of Units by the Company pursuant to this Agreement, the issuance and sale of Common Stock upon exercise of the Redeemable Warrants or other warrants outstanding on the date of this Agreement, the exercise of options granted under the Company's 1996 Stock Option Plan (the "Plan"), and the grant of options in the ordinary course under the Plan.
(fm) As soon as it is practicableThe Company will not take, but and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in any event not later than the first (lst) day stabilization or manipulation of the fifteenth (15th) full calendar month following the effective date price of any security of the Registration Statement, Company to facilitate the sale or resale of the Units.
(n) The Company will make available inform the Florida Department of Banking and Finance at any time prior to its security holders and the consummation of the distribution of the Units by the Underwriter an earnings statement (which need not if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be audited) covering a period of at least twelve (12) consecutive months beginning provided within 90 days after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationscommencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Samples: Underwriting Agreement (Wilsons the Leather Experts Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.completely comply
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, reasonable judgment may be necessary or advisable in connection with to enable the initial sale Underwriter to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are made. The preparation and furnishing of then existing, not misleading, or if it is necessary at any such amendment time to amend the Prospectus, including any amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, and applicable state securities laws.
(b) It the Company will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as promptly advise you may designate thereof and will make promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such applications statement or omission or an amendment or supplement which will effect such compliance and furnish will use its best efforts to cause the same to become effective as soon as possible; and, in case you or any Underwriters are required to deliver a Prospectus after such information nine-month period, the Company upon request, but at the expense of you or such Underwriters, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you or mail to you copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) The Company shall promptly prepare and file with the Commission, from time to time, such reports as may be required to be filed by the Act and the Exchange Act including, without limitation, reports with respect to the sale of the Common Shares and the application of the proceeds thereof as may be required in accordance with Rule 463 under the Act.
(h) During the period of five years hereafter, the Company will furnish to you: (i) at the same time as such are furnished to its Stockholders generally, copies of the Annual Report of the Company containing the consolidated balance sheet of the Company and the Subsidiaries as of the close of such fiscal year and consolidated statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock; (iv) as soon as practicable after the filing thereof, of each non-confidential report or other statement or document filed by the Company with the Commission, or with any national securities exchange or quotation system on which any securities of the Company may be listed or quoted; and (v) from time to time, such other non-confidential information concerning the Company as you may reasonably request.
(i) During the period of 180 days after the date the Registration Statement is declared effective by the Commission, without your prior written consent, which consent may be withheld at your sole discretion, the Company will not, directly or indirectly, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into, exchangeable for or exercisable for its Class A Common Stock or other equity security of the Company, other than (i) shares of Class A Common Stock or Class B Common Stock issued upon the exercise of outstanding stock options disclosed in the Prospectus; (ii) shares of Class A Common Stock or Class B Common Stock issued upon conversion of outstanding convertible securities disclosed in the Prospectus, (iii) options to purchase Class A Common Stock, Class B Common Stock or Series B Preferred Stock to be granted under the Company's stock option plans or approved as of September 30, 1997 by the Company's Board of Directors, as described under the caption "Capitalization" in the Prospectus, and the shares of Class A Common Stock, Class B Common Stock or Series B Preferred Stock issued upon exercise of such options, and (iv) shares of Class A Common Stock, Class B Common Stock or Series B Preferred Stock issued as fees to directors of the Company, salary to employees of the Company, dividends on the Company's stock, or bonuses under the Company's employee bonus plan. Notwithstanding the foregoing, the 180 day period set forth in the preceding sentence shall be reduced to 120 days with respect to the acquisition of any other financial institution or its holding company.
(j) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to list, subject to notice of issuance, the Common Shares as a national market system security on the Nasdaq Stock Market.
(l) Each of the Trust and the Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management=s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management=s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) The Company will not distribute prior to the First Closing Date any offering material in connection with the offering and sale of the Common Shares other than the Preliminary Prospectus, the Prospectus, the Registration Statement and the other materials permitted by the Act.
(n) The Company will not take, directly or indirectly, any action designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Class A Common Stock to facilitate the sale or resale of the Common Shares.
(o) The Company will not rely upon the Representatives or legal counsel for the Representatives for any legal, tax or accounting advice in connection with the Offering. You may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatthe Selling Securityholders covenant and agree as follows:
(a) It The Company will cooperate (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 in all respects in making the Prospectus effective reliance on Rule 430A and will (ii) not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Securities Act or the rules and regulations of the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Commission.
(b) The Company will advise you, and confirm promptly notify each Underwriter in the advice in writing, event of (i) the receipt of any comments of request by the Commission or any state securities department, when the Registration Statement becomes effective if the provisions for amendment of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any for supplement to the Prospectus or for any amended Prospectusadditional information, of any request made (ii) the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement, (iii) the institution or any order preventing or suspending the use notice of intended institution of any Prospectus action or proceeding for that purpose, (iv) the receipt by the Company of any order suspending trading in the Common Stock of the Company, or of notification with respect to the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities shares for offering sale in any jurisdiction, or (v) the receipt by it of notice of the institution initiation or threatening of any proceedings proceeding for any such purposes, and purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance of any such a stop order and, if such an order shall at any time be issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use withdrawal thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably requestearliest possible moment.
(c) So long as any of The Company will (i) on or before the SecuritiesClosing Date, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish deliver to its shareholders you a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a signed copy of the certificate or report thereon Registration Statement as originally filed and of independent public accountants.
(d) It will deliver each amendment thereto filed prior to you at or before the Initial Closing Date three time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copies copy of the signature pages each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will also deliver to you, from time for distribution to time until the effective date Underwriters, a sufficient number of the Prospectus, as many additional conformed copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date each of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.the
Appears in 1 contract
Samples: Underwriting Agreement (Physicians Speciality Corp)
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofCommission, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Shares by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Shares is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Shares for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Shares; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Shares shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the Commission, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Shares by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) After completion of the offering of the Shares, the Company will make all filings required to maintain the quotation of the Common Stock on The Nasdaq SmallCap Market or any national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Shares substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion .
(k) For a period of six months after the Effective Date of the proceeds shall be usedRegistration Statement, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly, effect the Disposition of any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock, except the Company may take the following actions:
(i) sell Shares pursuant to this Agreement;
(ii) grant options under the Option Plans in the ordinary course, provided that the exercise price or conversion price of any options shall have an exercise price or conversion price that is not less than the market price of the Common Stock at the date of grant, or if greater, $4.00 per share;
(iii) issue shares of Common Stock pursuant to the exercise of options granted under the Option Plans; and
(iv) sell Common Stock, grant warrants to purchase Common Stock (and issue shares pursuant to the exercise of such warrant), and grant other Securities convertible into Common Stock (and issue shares pursuant to the exercise of such warrant), to the Company's strategic business partners consistent with the past practices of the Company, provided that the exercise price or conversion price of any warrants or other convertible Security shall have an exercise price or conversion price that is not less than the market price of the common stock at the date of grant, or if greater, $4.00 per share.
(fl) As soon as it is practicableThe Company will not take, but and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in any event not later than the first (lst) day stabilization or manipulation of the fifteenth price of any security of the Company to facilitate the sale or resale of the Shares.
(15thm) full calendar month The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Shares by the Underwriter if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
(n) The Company hereby grants to the Underwriter a right of first refusal to act as the sole or managing agent or underwriter, as the case may be, for any private or public offering of equity or debt securities commenced by the Company during the period of three (3) years following the effective date Effective Date of the Registration Statement. If the Company receives a bona fide offer from any third party to serve as sole or managing agent or underwriter in such a private or public offering which the Company is willing to accept, the Company shall promptly give written notice to the Underwriter, including all essential terms and conditions of such offer. The Underwriter shall have a period of fifteen (15) days after receipt of such written notice to elect to enter into an agreement with the Company as sole or managing agent or underwriter, as the case may be, on the same terms and conditions as set forth in the company's written notice, after which time the Underwriter will be deemed to have declined such exercise. If the Underwriter declines to exercise its right of first refusal or fails to notify the Company within such 15-day period of an election to invoke its right of first refusal, the Company may enter into an agreement with such third party from whom it has received a bona fide offer; provided, however, that the Underwriter's right of first refusal with respect to other offerings shall continue until the termination of the three-year period following the Effective Date of the Registration Statement. If the Company fails to enter into such an agreement with such third party or if the terms and conditions of such offer are thereafter materially changed, the right of first refusal granted to the Underwriter shall once again apply.
(o) The Company hereby grants to the Underwriter the right to nominate a representative to serve on the Company's Board of Directors during the period of three (3) years following the Effective Date of the Registration Statement, and the Company will make available shall use its best efforts to its security holders secure the election of such representative to the Company's Board of Directors. Such representative shall be subject to the approval of the Company, which approval shall not be unreasonably withheld. The Underwriter's right to nominate a representative to serve on the Company's Board of Directors supersedes, and is not in addition to, the similar right granted to the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after in the effective date of Agency Agreement for the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsCompany's 1997 private placement.
Appears in 1 contract
Samples: Underwriting Agreement (Founders Food & Firkins LTD /Mn)
Covenants of the Company. The Company covenants and agrees with you each Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus Registration Statement to become effective and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Representative and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Representative shall not previously have been advised and furnished with a copy or to which you the Representative or your counsel to the Representative shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriters of the distribution of the Shares contemplated hereby (but in no event more than nine months after the Effective Date) and (B) 25 days after the Effective Date, the Company will prepare and file with the Commission, promptly upon your request, any amendments or applicable state lawsupplements to the Registration Statement or Prospectus which, in the Representative's reasonable opinion, may be necessary or advisable in connection with the distribution of the Shares. As soon as Promptly after the Representative or the Company is advised thereof, the Representative will advise the Company or the Company will advise youthe Representative, as the case may be, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop orders or other order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or any order suspending trading in the Common Stock of the CompanyProspectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriters and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Shares for such period not to exceed nine months from the Effective Date as in the reasonable opinion of your counsel and our counsel for the Representative the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securitiessales by an underwriter or dealer, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the CompanyCompany or the Securities, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriters should be set forth in an amendment of to the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivereddelivered to a purchaser of the Shares, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, Act or with the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you the Representative may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. the Underwriters, except that in case the Underwriters are required, in connection with the sale of the Shares, to deliver a Prospectus nine months or more after the Effective Date, the Company will upon request of and at your expense, amend or supplement the Registration Statement and Prospectus and furnish the Underwriters with reasonable quantities of prospectuses complying with Section 10(a)(3) of the Act.
(b) The Company will to the best of its ability comply with the Act, the Rules and Regulations and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and applicable state securities laws so as to permit the initial offer rules and sales regulations thereunder in connection with the offering and issuance of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It Shares. The Company will cooperate use its best efforts to qualify or register the Securities and the Option Securities and the Representative's Securities for initial sale under the securities or "blue sky" laws of such jurisdictions as you the Representative may designate have designated in writing prior to the execution hereof and will make such applications and furnish such information to counsel for the Representative as may be required for that purposepurpose and to comply with such laws, provided that the Company shall not be required to qualify as a foreign corporation or a dealer in securitiessecurities or to execute a general consent to service of process in any jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as the Underwriter you may reasonably requestrequire for the distribution of the Shares. Legal fees for such qualifications shall be itemized based on the time expended and costs incurred, shall be reasonable and shall not in any event exceed $10,000 exclusive of filing fees.
(c) So The Company will instruct its transfer agent to provide you with copies of the Depository Trust Company stock transfer sheets on a weekly basis for a period of three months from the First Closing Date and on a monthly basis thereafter for nine additional months.
(d) The Company will use its best efforts to cause a registration statement under the Exchange Act to be declared effective on the Effective Date.
(e) For so long as any the Company is a reporting company under either Section 12(g), 13 or 15(d) of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the publicExchange Act, the Company, at its expense, will annually furnish to its shareholders a stockholders an annual report of its operations to include (including financial statements audited by independent public accountants), in reasonable detail and at its expense, will furnish to you during the Underwriter period ending five (5) years from the date hereof, (i) as soon as practicable after the end of each fiscal year, a balance sheet of the Company and any subsidiaries as at the end of such fiscal year, together with statements of operationsincome, shareholdersstockholders' equity, equity and changes in cash flow flows of the Company for and any subsidiaries as at the end of such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent accountants; (ii) as soon as they are available, a copy of all reports (financial or other) mailed to security holders; (iii) as soon as they are available, a copy of all non-confidential reports and financial statements furnished to or filed with the Commission; and (iv) such other information of a public accountantsnature as you may from time to time reasonably request.
(df) It The financial statements referred to in subsection (e) above will be on a consolidated basis to the extent the accounts of the Company and its subsidiary or subsidiaries are consolidated in reports furnished to its stockholders generally.
(g) The Company will deliver to you at or before the Initial First Closing Date three two (2) signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceand of all amendments thereto. The Company will deliver to youor upon your order, from time to time until the effective date of the Prospectus, Effective Date as many copies of any Preliminary Prospectus filed with the Prospectus Commission prior to the Effective Date as you the Underwriters may reasonably request. The Company will deliver to you on the effective date of the Prospectus Effective Date and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations Act, from time to time, as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you the Underwriters may from time to time reasonably request.
(eh) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make generally available to its security holders and deliver to you as soon as it is practicable to do so, but in no event later than 90 days after the Underwriter end of 12 months after its current fiscal quarter, an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Effective Date which shall satisfy the requirements of Section 11(a) of the Act Act.
(i) The Company will apply the net proceeds from the sale of the Shares substantially for the purposes set forth under "Use of Proceeds" in the Prospectus, and will report the use of the proceeds from the sale of the Shares as may be required pursuant to Rule 158(a) 463 of the Rules and Regulations.
(j) The Company will, promptly upon your request, prepare and file with the Commission any amendments or supplements to the Registration Statement, preliminary Prospectus or Prospectus and take any other action, which in the opinion of De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx, counsel to the Representative, may be reasonably necessary or advisable in connection with the distribution of the Shares and will use its best efforts to cause the same to become effective as promptly as possible.
(k) Prior to the Effective Date, the Company will cause all of the Company's directors, executive officers and 5% stockholders of the Company to enter into a written agreement with the Representative, which, among other things, shall provide that for a period of twelve (12) months following the Effective Date, such persons will not offer, sell, contract to sell, transfer, assign, gift, grant any option or warrant to purchase or right to acquire, any of the shares of Common Stock or Preferred Stock of the Company (including preferred stock, warrants, options or other securities convertible into Common Stock which may be deemed to be beneficially owned by such person in accordance with the rules of the Commission) owned by them on the Effective Date, or subsequently acquired by the exercise of any options or warrants or conversion of any convertible security of the Company held by them on the Effective Date directly or indirectly, except with the Representative's prior written consent, which consent may be unreasonably withheld, and such stockholders will permit all certificates evidencing those shares to be stamped with an appropriate restrictive legend, and will cause the transfer agent for the Company to note such restrictions on the transfer books and records of the Company; except that, during such twelve (12) month period, such stockholders may make transfers among Existing Shareholders (as defined in the Registration Statement) and gifts to their children or trusts established for their children provided that any such person or organization agrees to be bound by the foregoing restrictions on the disposition of the securities.
(l) The Company shall, upon the initial filing of the Registration Statement, make all filings required to obtain approval for the quotation of the Shares on the Nasdaq National Market System and will use its best efforts to effect and maintain the aforesaid approval for at least three (3) years from the date of this Agreement. Within ten (10) days after the Effective Date, the Company shall cause the Company to be listed in the Xxxxx'x OTC Industrial Manual or S&P Manual and cause such listing to be maintained for three (3) years from the date of this Agreement.
(m) The Company represents that it has not taken, and agrees that it will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Shares, or to facilitate the sale or resale of the Securities.
(n) During the period of the offering, and for a period of twelve (12) months from the later of the First Closing or Option Closing Date, the Company will not sell or otherwise dispose of any Shares of Common Stock or Preferred Stock or issue warrants or options or other equity securities of the Company (except for: (i) up to 1,000,000 shares pursuant to the Company's Stock Incentive Plan; (ii) shares of Common Stock issuable upon exercise of options outstanding on the Closing Dates or (iii) shares of Common Stock or securities exchangeable or exercisable for, or any securities convertible into, Common Stock in connection with an acquisition provided that the holder of any such Common Stock or securities executes an agreement identical to the agreement required by Section 3(k)) or purchase any securities of the Company without the Representative's prior written consent; provided that with the prior written consent of the Representative, which consent shall not be unreasonably withheld, the Company may issue warrants to purchase Common Stock in connection with the issuance by the Company of non-convertible debt instruments the proceeds of which are used by the Company exclusively for the purpose of acquisitions and provided, further, that: (1) the aggregate number of all such warrants issued in connection with all such non-convertible debt offerings does not exceed warrants to purchase 8% of the total issued and outstanding shares of Common Stock of the Company on the Effective Date (after giving effect to the sale of the Shares and to the exercise of any options, warrants or other convertible securities issued and outstanding on the Effective Date); and (2) the exercise price of any such warrants shall be not less than 110% of the Current Market Price of a share of Common Stock of the Company on the closing date of any such high yield debt offering. For purposes of this Section 3(n), the term "Current Market Price" shall mean the closing price of a share of Common Stock on the trading date immediately preceding the date in question. The closing price shall be the last reported sales price on the principal national securities exchange (including for purposes hereof, the Nasdaq National Market System) on which the Common Stock is listed or admitted to trading, or if the Common Stock is not admitted to trading on any national securities exchange, the highest reported bid price for the Common Stock as furnished by the National Association of Securities Dealers, Inc., through the Nasdaq Stock Market, Inc. or a similar organization. If on any such date the Common Stock is not listed or admitted to trading on any national securities exchange and is not quoted by The National Stock Market, Inc., or any similar organization, the Current Market Price shall mean the fair value of a share of Common Stock as determined in good faith by the Board of Directors of the Company.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of filing or to which you reasonably object (except to the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as extent any amendment or supplement to which you object is necessary in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts Company to cause the same to become effective as promptly as possible. The Company shall file ensure that the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) does not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are were made. The preparation and furnishing of any such amendment , not misleading) or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply which is not in compliance in all material respects with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestRegulations.
(eb) The Company will apply fully and completely comply with the net proceeds provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the sale of the Securities and the Option Securities substantially Registration Statement in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriterreliance upon such Rule.
(fc) If during such period after the first date of the public offering of the Shares as, in the opinion of your counsel, the Prospectus is required by law to be delivered in
(d) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents (other than periodic filings under the Exchange Act) in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate and Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Representatives: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Xxxxxxxxxx Securities, as a Representative of the Underwriters, or each of the Representatives (which consent may be withheld at the sole discretion of any of the Representatives), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security; provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of stock options and warrants outstanding on the date hereof, as described in the Prospectus (it being agreed that the Company shall not accelerate the exercisability of any such options or grant any waiver or acceleration under the terms of the Stock Restriction Agreement to be entered into by the optionee upon the exercise of such options), and (ii) grant options and issue shares of Common Stock in accordance with its Amended and Restated Stock Option Plan, Stock Incentive Plan or Employee Stock Purchase Plan, as described in the Prospectus or in materials incorporated by reference in the Prospectus.
(i) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use every reasonable effort 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts every reasonable effort to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be reasonably necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the period as during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other lawevent occurs, the Company will forthwith prepare and furnish to you copies as a result of such amended Prospectus or of such supplement to be attached to which the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, and applicable state securities laws.
(b) It the Company will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as promptly advise you may designate thereof and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, promptly prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as with the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the CompanyCommission, at its own expense, an amendment or supplement which will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, correct such statement or omission or an amendment or supplement which will effect such compliance and will furnish use its best efforts to cause the Underwriter same to become effective as soon as practicable possible; and, in case any Underwriter is required to deliver a prospectus after the end of each fiscal yearsuch nine-month period, a balance sheet of the Company as upon request, but at the end expense of such fiscal yearUnderwriter, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for will promptly prepare such fiscal year, all in reasonable detail and accompanied by a copy of the certificate amendment or report thereon of independent public accountants.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages amendments to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the such Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.or
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thateach of the Underwriters:
(ai) It will cooperate in all respects in making If required by the Prospectus effective rules and will not at any time, whether before or after regulations of the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofCommission, the Company will advise you, and confirm file the advice in writing, of the receipt of any comments of Prospectus with the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed pursuant to and in accordance with said subparagraph (1) (or, if applicable and if consented to by the Underwriters, subparagraph (4)) of Rule 430A, 424(b) not later than the earlier of (A) the effectiveness second business day following the execution and delivery of any this Agreement or (B) the fifth business day after the date on which a post-effective amendment to the Registration Statement or Prospectus, is declared effective. The Company will advise the Underwriters promptly of any such filing.
(ii) The Company will not file with the Commission the Prospectus or the filing amendment referred to in the second sentence of Section 1(i) hereof, any amendment or supplement to the Prospectus or any amended Prospectusamendment to the Registration Statement unless the Underwriters have received a reasonable period of time to review any such proposed amendment or supplement and consented to the filing thereof, such consent not to be unreasonably delayed or withheld. The Company will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon the reasonable request of the Underwriters or counsel for the Underwriters, 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 amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters and 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 or supplement to the Prospectus with the Commission in the manner and within the time period required by Rule 424(b) under the Act. The Company will advise the Underwriters, promptly after receiving notice thereof, of the time when any request made amendment to the Registration Statement has been filed or declared effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriters of each such filing or effectiveness.
(iii) The Company will advise the Underwriters promptly after receiving notice or obtaining knowledge of (A) the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any order suspending trading in the Common Stock of the Company, amendment or of supplement thereto (B) the suspension of the qualification of the Securities, the Option Securities Shares for offer or the Representatives Securities for offering sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings proceeding for any such purposespurpose, and or (C) any request made by the Commission or any securities authority of any other jurisdiction for amending the Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use withdrawal thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file .
(iv) If during the Prospectus (in form and substance satisfactory period when the delivery of a prospectus relating to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus Shares is required under the Act to be delivered in connection with the initial sale of the SecuritiesAct, the Option Securities and the Representative's Securities of any event events have occurred as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not as then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any supplemented would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in light of the circumstances under which they are were made. The preparation , 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 furnishing of any such regulations thereunder, the Company will promptly notify the Underwriters and upon their 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 supplement omission or effects such compliance and will furnish without charge to be attached each Underwriter and to any dealer in securities as many copies of such amended or supplemented Prospectus as the Underwriters may from time to time reasonably request. If an Underwriter is required to deliver a prospectus relating to the Prospectus shall be without expense to you. The Company will to Shares at any time after the best period when delivery of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities a prospectus is required under the Act, upon request of the Rules Underwriters but at the expense of the Underwriters, the Company will prepare and Regulationsdeliver to the Underwriters as many copies as the Underwriters may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act. Neither the Underwriters' consent to, and applicable state securities lawsnor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7.
(bv) It The Company promptly from time to time will cooperate take such action as the Underwriters may reasonably request to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities or blue sky laws of such jurisdictions as you the Underwriters may designate request and will make continue such applications and furnish such information qualification in effect for as long as may be required for that purposenecessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably requestany jurisdiction.
(cvi) So long as any The Company will promptly provide the Underwriters, without charge, (A) two manually executed copies of the Securities, Registration Statement as originally filed with the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, Commission and will furnish to the Underwriter as soon as practicable after the end of each fiscal yearamendment thereto, (B) for each other Underwriter a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a conformed copy of the certificate or report thereon of independent public accountants.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement as originally filed and three copies of the registration statement including all financial statements each amendment thereto, without exhibits, and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for (C) so long as a Prospectus prospectus relating to the Shares is required to be delivered under the Act and the Rules and Regulations Act, as many copies of each Preliminary Prospectus or the Prospectus, in final form, Prospectus or any amendment or supplement thereto as thereafter amended or supplemented, as you the Underwriters may from time to time reasonably request.
(evii) As soon as practicable, but in any event not later than the 45th day following the end of the fiscal quarter in which occurs the first anniversary of the effective date of the Registration Statement (except such date shall be the 90th day rather than the 45th day if such quarter is then the fourth fiscal quarter of the Company's fiscal year) after the effective date of the Registration Statement, the Company will make generally available to its security holders an earnings statement of the Company covering a period of at least 12 months beginning after the effective date of the Registration Statement (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder.
(viii) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Conversion, the Company will not, without the prior written consent of Raymxxx Xxxex & Xssociates, Inc., 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 (a) as provided in Section 2 and except for the issuance of Common Stock upon the exercise of stock options or warrants outstanding on the date of this Agreement to the extent that such stock options or warrants were issued pursuant to plans or agreements which are disclosed in the Prospectus, (b) the grant of options to employees or directors under existing stock option plans and the issuance of Common Stock upon the exercise thereof, or (c) as otherwise disclosed or contemplated by the Prospectus.
(ix) During a period of five years from the effective date of the Registration Statement, the Company will furnish to the Underwriters, without charge, (A) copies of all reports or other communications (financial or other) furnished to shareholders generally, (B) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or the National Association of Securities Dealers, Inc. or any national securities exchange upon which trading in shares of the Common Stock is listed or reported, and (C) such additional information concerning the business and financial condition of the Company as the Underwriters may reasonably request subject to appropriate confidentiality provisions with respect to material non-public information.
(x) The Company will not (A) take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (B) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares, or (C) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(xi) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially offering in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fxii) As soon The Company will use its best efforts to cause the Shares to be listed on the Nasdaq National Market at each Time of Delivery and maintain such listing on a continuous basis for at least one year from the date hereof.
(xiii) If at any time during the period beginning on the date the Registration Statement becomes effective and ending on the later of (A) the date 25 days after such effective date (or if the Underwriter's option granted pursuant to Section 2 hereof has not been exercised by such date, then 35 days after such effective date) and (B) the date that is the earlier of (1) the date on which the Company first files with the Commission a Quarterly Report on Form 10-Q after such effective date and (2) the date on which the Company first issues a quarterly financial report to shareholders after such effective date, any rumor, publication or event relating to or affecting the Company shall occur as it is practicable, but a result of which in any event not later than the first (lst) day reasonable opinion of the fifteenth (15th) full calendar month following Underwriters the effective date market price of the Registration StatementCommon Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates an amendment of or supplement to the Prospectus), the Company will make available will, after written notice from the Underwriters advising the Company to its security holders the effect set forth above, forthwith prepare, consult with the Underwriters concerning the substance of, and consult with Company counsel to determine whether or not it is advisable, under the Underwriter an earnings statement (which need not be audited) covering circumstances, to disseminate a period of at least twelve (12) consecutive months beginning after press release or other public statement, reasonably satisfactory to the effective date of the Registration StatementUnderwriters, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationsresponding to or commenting on such rumor, publication or event.
Appears in 1 contract
Samples: Underwriting Agreement (Summit Holding Southeast Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to completely comply with the Act, provisions of Rule 430A of the Rules and Regulations or with respect to information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any other law, time prior to the Company will forthwith prepare and furnish final date on which a prospectus relating to you copies of such amended Prospectus or of such supplement the Common Shares is required by law to be attached to delivered by an Underwriter or dealer, any event occurs, as a result of which the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation and furnishing of , not misleading, or if it is necessary at any such amendment time to amend the Prospectus, including any amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
(b) It will cooperate promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to qualify cause the Securities and same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Option Securities and Company upon request, but at the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act Act.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, will furnish to you and Rule 158(a) the Selling Stockholders or mail to your order copies of the Rules Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholders may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Xxxxxxxxxx Securities, which consent may be withheld at the sole discretion of Xxxxxxxxxx Securities, the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security except for (a) issuances of Common Stock pursuant to this Agreement, (b) grants of options to the Company's employees, directors and consultants under the Company's stock option plans as disclosed in the Prospectus, (c) issuances of Common Stock upon the exercise or conversion of reserved, authorized or outstanding stock options, warrants or convertible notes disclosed in the Prospectus, (d) issuances of the Company's Common Stock or other equity securities or any other securities convertible into or exchangeable for its Common Stock or other equity securities as full or partial consideration for any bona fide loan to the Company or for any bona fide merger or acquisition transaction.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will use its best efforts to cause the Common Shares to be listed for quotation as a national market system security on the Nasdaq National Market. You may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by all of the Underwriters of the distribution of the Stock contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective (the "Minimum Period"), the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Stock. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Stock for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriters and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Stock for such period as in the opinion of your counsel and our counsel to the several Underwriters the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the this Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriters should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Stock or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to youthe Underwriters, except that in case any Underwriter is required, in connection with the sale of the Stock, to deliver a Prospectus nine months or more after the effective date of the Registration Statement, the Company will upon request of and at the expense of the Underwriter, amend or supplement the Registration Statement and Prospectus and furnish the Underwriter with reasonable quantities of prospectuses complying with Section 10(a)(3) of the Act. The Company will to the best of its ability comply with the Act, the Rules and Regulations and the Securities Exchange Act of 1934, as amended (the "Exchange Act") and applicable state securities laws so as to permit the initial offer rules and sales regulations thereunder in connection with the offering and issuance of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsStock.
(b) It The Company will cooperate use its best efforts to qualify to register the Securities and the Option Securities and the Representative's Securities Stock for initial sale under the securities or "blue sky" laws of such jurisdictions as you the Representative may designate and will make such applications and furnish such information as may be required for that purposepurpose and to comply with such laws, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securitiessecurities or to execute a general consent to service of process in any jurisdiction in any action other than one arising out of the offering or sale of the Stock. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as the Underwriter Underwriters may reasonably request.
(c) So If the sale of the Stock provided for herein is not consummated for any reason caused by the Company, the Company shall pay all costs and expenses incident to the performance of the Company's obligations hereunder, including but not limited to, all of the expenses itemized in Section 8, including the accountable expenses of the Underwriters, including legal fees.
(d) The Company will use its best efforts to (i) cause a registration statement under the Exchange Act to be declared effective concurrently with the completion of this offering (and will notify the Representative in writing immediately upon the effectiveness of such registration statement), and (ii) if requested by the Representative, to obtain a listing on the Pacific Stock Exchange, and to obtain and keep current a listing in the Standard & Poors or Moodx'x Xxxustrial OTC Manual.
(e) For so long as any the Company is a reporting company under either Section 12(g) or 15(d) of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the publicExchange Act, the Company, at its expense, will annually furnish to its shareholders a stockholders an annual report of its operations to include (including financial statements audited by independent public accountants), in reasonable detail, and at its expense, will furnish to you during the Underwriter period ending five (5) years from the date hereof, (i) as soon as practicable after the end of each fiscal year, a balance sheet of the Company and any of its subsidiaries as at the end of such fiscal year, together with statements of operationsincome, shareholders' equity, surplus and changes in cash flow of the Company and any subsidiaries for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (ii) as soon as practicable after the end of each of the first three fiscal quarters of each fiscal year, consolidated summary financial information of the Company for such quarter in reasonable detail; (iii) as soon as they are available, a copy of all reports (financial or other) mailed to security holders; (iv) as soon as they are available, a copy of all non-confidential reports and financial statements furnished to or filed with the Commission of any securities exchange or automated quotation system on which any class of securities of the Company is listed; and (v) such other information as you may from time to time reasonably request.
(df) It In the event the Company has an active subsidiary or subsidiaries, such financial statements referred to in subsection (e) above will be on a consolidated basis to the extent the accounts of the Company and its subsidiary or subsidiaries are consolidated in reports furnished to its stockholders generally.
(g) The Company will deliver to you at or before the Initial First Closing Date three two signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceand of all amendments thereto, and will deliver to the several Underwriters such number of conformed copies of the Registration Statement, including such financial statements but without exhibits, and of all amendments thereto, as the several Underwriters may reasonably request. The Company will deliver to youor upon the order of the several Underwriters, from time to time until the effective date of the ProspectusRegistration Statement, as many copies of any Preliminary Prospectus filed with the Prospectus Commission prior to the effective date of the Registration Statement as you the Underwriters may reasonably request. The Company will deliver to you the Underwriters on the effective date of the Prospectus Registration Statement and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations Act, from time to time, as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you the Underwriters may from time to time reasonably request.
(eh) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make generally available to its security holders and deliver to you as soon as it is practicable to do so but in no event later than 90 days after the Underwriter end of twelve months after its current fiscal quarter, an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(aAct.
(i) The Company will apply the net proceeds from the sale of the Rules Stock for the purposes set forth under "Use of Proceeds" in the Prospectus, and Regulationswill file such reports with the Commission with respect to the sale of the Stock and the application of the proceeds therefrom as may be required pursuant to Rule 463 under the Act.
(j) The Company will, promptly upon your request, prepare and file with the Commission any amendments or supplements to the Registration Statement, Preliminary Prospectus or Prospectus and take any other action, which in the reasonable opinion of Bachner, Tally, Polexxx & Xishxx XXX, counsel to the several Underwriters, may be reasonably necessary or advisable in connection with the distribution of the Stock, and will use its best efforts to cause the same to become effective as promptly as possible.
(k) The Company will reserve and keep available that maximum number of its authorized but unissued shares of Common Stock which are issuable upon exercise of the Warrants outstanding from time to time.
(l) For a period of 12 months from the date of the Prospectus, no officer, director or shareholder of the Company (including beneficial holders of 5% or more of the Company's outstanding capital stock (the "Principal Stockholders")) will offer, sell or dispose of, directly or indirectly, any shares of Common Stock without the prior written consent of the Representative. In addition, holders of registration rights will agree not to exercise such registration rights for a period of 12 months from the date of the Prospectus. In order to enforce this covenant, the Company shall impose stop-transfer instructions with respect to the shares of Common Stock owned by the Principal Stockholders until the end of each such period.
(m) During the two year period commencing on the effective date of the Registration Statement, the Company shall, at the Representative's option, nominate a designee of the Representative for election to the Company's Board of Directors. If no such designee is selected by Representative, the Representative shall have the option to appoint an observer selected by the Representative to attend all meetings of the Company's Board of Directors during such period.
(n) Upon completion of this offering, the Company will make all filings required, including registration under the Exchange Act, to obtain the listing of its Common Stock on the Nasdaq SmallCap Market, and will effect and maintain such listing for at least five years from the date of this Agreement.
(o) The Company and each of the Principal Stockholders represents that it or he has not taken and agree that it or he will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Stock or to facilitate the sale or resale of the Stock.
(p) On the Closing Date, and simultaneously with the delivery of the Stock, the Company shall execute and deliver to you, individually and not as representative of the Underwriters, the Warrants. The Warrants will be substantially in the form of the Stock Purchase Warrant filed as an Exhibit to the Registration Statement.
(q) During the 18 month period commencing on the date of this Agreement the Company will not, without the prior written consent of the Representative, grant options to purchase shares of Common Stock at a price less than the lesser of (i) initial public offering price of the Stock or (ii) the fair market value of the Common Stock on the date of grant. During the six month period commencing on the date of this Agreement, the Company will not, without the prior written consent of the Representative, grant options to any current officer of the Company. During the three year period from the First Closing Date, the Company will not, without the prior written consent of the Representative offer or sell any of its Securities pursuant to Regulation S.
(r) Walt Xxxxxxxx xxxl be Chief Executive Officer of the Company on the Closing Dates. The Company has obtained key person life insurance on the life of Walt Xxxxxxxx xx an amount of not less than $1 million and will use its best efforts to maintain such insurance for a minimum period of three years from the effective date of the Registration Statement or, if such individual's employment is terminated prior to such date, to maintain such insurance on his successor until the expiration of such period. For a period of
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate prepare a final prospectus supplement with respect to the Notes in all respects in making the Prospectus effective a form approved by you and will not at any time, whether before file such prospectus supplement pursuant to Rule 424(b) under the Act by the time required pursuant to Rule 424(b) under the Act. The Company will advise you promptly of the filing or after the effective date, file effectiveness of any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy Registration Statement or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofProspectus, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of from the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment respect to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectusamendment or supplement thereto, and of any request made receipt of notification of the institution by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance State of any stop order suspending the effectiveness proceedings in respect of the Prospectus Registration Statement or any order preventing the initiation or suspending the use threatening of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities proceeding for offering in any jurisdiction, or of the institution of any proceedings for any such purposespurpose, and will use its best efforts every reasonable effort to prevent the issuance of any such stop order and, if issued, and to obtain as soon as possible the lifting or dismissal thereofits lifting, if issued. The Company has caused to be delivered to will also notify you copies promptly of such Prospectus, and any request by the Company has consented and hereby consents Commission for any amendment of or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement or the Prospectus and such copies of or for additional information; the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, asRegistration Statement or the Prospectus which, in the opinion of your counselopinion, may be necessary or advisable in connection with the initial sale distribution of the Securities, the Option Securities Notes; and the Underwriter's Securities and Company will use its best efforts not file any amendment or supplement to cause the same to become effective as promptly as possible. The Company shall file Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof, such consent not to be unreasonably withheld or delayed.
(in form and substance satisfactory to the Underwriterb) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close If, during such period of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day time after the effective first date of the Registration Statement. In case public offering of the happening, at any time within such period Notes as in the opinion of counsel for the Underwriters a Prospectus prospectus relating to the Notes is required under the Act by law to be delivered in connection with the initial sale of the Securitiessales by an Underwriter or dealer, the Option Securities and the Representative's Securities of any event occurs as a result of which the Company has knowledge and which materially affects the Company, Prospectus as then amended or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleadingsupplemented would, in light the judgment of the circumstances existing at the time the Prospectus is required under the Act to be deliveredUnderwriters and their counsel, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any include an untrue statement of a material fact fact, or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are were made. The preparation , not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act or any other law, the Company promptly will prepare and furnishing of any such file with the Commission an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance and will notify you and, upon your request, prepare and furnish without charge to each Underwriter and to any dealer in the Notes as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or supplement to be attached to the Prospectus shall be without expense to you. omission or effect such compliance.
(c) The Company will make generally available to the best Company's security holders (and shall deliver to you), in the manner contemplated by Rule 158(b) under the Act or otherwise, as soon as practicable but in any event not later than 45 days after the end of its ability comply with fiscal quarter in which the Actfirst anniversary date of the date the Notes are released for sale occurs (or not later than 90 days after the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal year), an earnings statement satisfying the Exchange requirements of Section 11
(a) of the Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, Regulations and applicable state securities lawscovering a period of at least 12 consecutive months beginning after the date the Notes are released for sale.
(bd) It The Company will cooperate deliver to each of you as many conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and of the Prospectus as you may reasonably request, including a conformed copy of the Registration Statement and each amendment thereto for each of the Underwriters.
(e) The Company will endeavor, in cooperation with you, to qualify the Securities Notes for offering and the Option Securities and the Representative's Securities for initial sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate designate, and will make maintain such applications and furnish such information qualifications in effect for as long as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as distribution of the Underwriter may reasonably requestNotes.
(cf) So long as any During the period of the Securitiesthree years hereafter, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and Company will furnish to you, and upon request to each of the Underwriter other Underwriters, as soon as practicable after the end of each fiscal year, a balance sheet copy of its annual report to stockholders for such year, and the Company will furnish to you as soon as available, a copy of each report or definitive proxy statement of the Company as at filed with the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of Commission under the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate Exchange Act or report thereon of independent public accountantsmailed to stockholders.
(dg) It will deliver to you at or before Until the Initial Closing Date three signed copies termination of the signature pages to the Registration Statement and three copies offering of the registration statement including Notes, the Company shall timely file all financial statements documents and exhibits amendments to previously filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is documents required to be delivered under the Act and the Rules and Regulations as many copies filed by it pursuant to Section 12, 13, 14 or 15(d) of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestExchange Act.
(eh) The Company will shall apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner Notes as set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise the Underwriter and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you the Underwriter or your its counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Securities contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 90 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Securities. As soon as the Company is advised thereof, the Company will advise youthe Underwriter, and confirm provide the advice in writingUnderwriter copies of any written advice, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for an amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.the
Appears in 1 contract
Samples: Underwriting Agreement (Pc411 Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment promptly deliver to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, each of the receipt you a signed copy of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if as originally filed or, to the provisions of Rule 430A promulgated under the Act will be relied uponextent a signed copy is not available, when the Prospectus has been filed in accordance with said Rule 430Aa conformed copy, certified by an officer of the effectiveness Company to be in the form as originally filed, including all exhibits, and of any post-effective amendment all amendments thereto.
(b) It will deliver to you, as soon as practicable after the Registration Statement or Prospectusdate hereof, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment as many copies of the Prospectus or for supplementing as of such date as you may reasonably request.
(c) It will cause the Prospectus or for additional information to be filed with respect thereto, the Commission pursuant to Rule 424 as soon as practicable and advise you of the issuance of any stop order suspending under the effectiveness of Securities Act with respect to the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and therefor of which the Offerors shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and, and to secure the prompt removal thereof if issued.
(d) If, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies during such period of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use time (not exceeding nine months) after the Prospectus and such copies of the Prospectus in connection has been filed with the sale of the Securities, the Option Securities and the Representative's Securities for such period Commission pursuant to Rule 424 as in the opinion of your counsel and our counsel Counsel for the use thereof Underwriters a prospectus covering the TOPrS is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act law to be delivered in connection with sales by an Underwriter or dealer, any event relating to or affecting the initial sale of the SecuritiesCompany, TXU Eastern Funding, the Option Securities and Partnership or the Representative's Securities of any event Trust or of which the Company has knowledge and which materially affects shall be advised in writing by you shall occur that in the Company, or 's reasonable opinion after consultation with Counsel for the securities thereof, and which Underwriters should be set forth in a supplement to, or an amendment of or a supplement to of, the Prospectus in order to make the statements therein Prospectus not then misleading, misleading in the light of the circumstances existing when it is delivered to a purchaser, the Company will, at the time the Prospectus is required under the Act to be deliveredits expense, or in case it shall be necessary to amend or supplement the Prospectus by either (i) preparing and furnishing to comply with you at the Company's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus or (ii) making an appropriate filing pursuant to Section 13 of the Exchange Act, which will supplement or amend the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectusso that, as so amended supplemented or supplementedamended, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing of any such amendment or supplement supplement. In case any Underwriter is required to deliver a prospectus after the expiration of nine months from the date the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply is filed with the Act, the Exchange Act and applicable state securities laws so as Commission pursuant to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the publicRule 424, the Company, at its expenseupon such Underwriter's request, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to such Underwriter, at the Underwriter as soon as practicable after the end expense of each fiscal yearsuch Underwriter, a balance sheet reasonable quantity of a supplemental prospectus or supplements to the Prospectus complying with Section 10(a) of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestSecurities Act.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company It will make generally available to its security holders and the Underwriter holders of the TOPrS, as soon as practicable, an earnings statement of the Company (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after not earlier than the first day of the month next succeeding the month in which occurred the effective date of the Registration Statement as defined in Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Offered Securities for offer and sale under the blue-sky laws of such jurisdictions as you may designate, provided that the none of the Offerors shall be required to qualify to do business in any jurisdiction, to qualify as a dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, which (ii) the issuance and delivery of the TOPrS as provided in Section 5 hereof and the issuance and delivery of the other Offered Securities in connection therewith, (iii) the qualification of the Offered Securities under blue-sky laws (including counsel fees not to exceed $7,500), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 6(d) hereof, of the Prospectus. The Company shall satisfy not, however, be required to pay any amount for any expenses of yours or any of the requirements Underwriters, except that, if this Agreement shall be terminated in accordance with the provisions of Section 11(a) 7, 8 or 10 hereof, the Company will reimburse you for the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $5,000, incurred in contemplation of the Act and Rule 158(a) performance of this Agreement. The Company shall not in any event be liable to any of the Rules several Underwriters for damages on account of loss of anticipated profits.
(h) During the period from the date of this Agreement to the Closing Date, neither the Company, TXU Eastern Funding, the Partnership or the Trust will, without the prior written consent of the Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, in the market in which the TOPrS are being offered and Regulationssold, any securities of the Company or any of its subsidiaries that are of the same class as any of the Offered Securities.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, the Company will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations or applicable state lawRegulations. At any time prior to the As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best est efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel and our counsel to the Underwriter the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter or dealer of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Units or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify you promptly and forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.Prosxxxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Piranha Interactive Publishing Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate During the period referred to in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSection 5(b), the Company will advise youwill, at your request, furnish through you to any prospective purchaser of Designated Certificates from you such information as is reasonably requested and confirm is reasonably available concerning matters reasonably relevant to such prospective purchaser's decision to purchase the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, Designated Certificates and the Company has consented represents and hereby consents to the use of warrants that such copies for the purposes permitted by law. The Company authorizes you information will be accurate in all material respects and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time authorizes you to time, prepare and file such statements and reports as are deliver to investors any information provided under Section 5(a) hereof in connection with any reoffer or may be required to continue such qualification resale of the Designated Certificates by you in effect for so long as the Underwriter may reasonably requestaccordance herewith.
(c) So long The Company agrees to use its reasonable best efforts to furnish (or cause to be furnished) such information and to execute such documents or instruments as you may rea- sonably request to satisfy any condition to the availability of an exemption under the state securities or blue sky laws of any state for any sale of Designated Certificates by you (provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to service of process in suits, other than those arising out of the Securities, the Option Securities offering or the Representative's Securities remain outstanding in the hands sale of the publicCertificates, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsany jurisdiction where it is not now so subject).
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to youpay all costs and expenses in connection with the transactions herein contemplated, from time to time until including, but not limited to, the effective date fees and disbursements of its counsel; the costs and expenses of printing (or otherwise reproducing) and delivering the Pooling and Servicing Agreement and the Certifi- cates; the fees, costs and expenses of the Prospectus, as many copies of Trustee (to the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered extent permitted under the Act Poolxxx xnd Servicing Agreement, and except to the extent that another party is obligated to pay such amounts thereunder) and the Rules fees and Regulations as many copies disbursements of accountants for the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestCompany.
(e) The Company will apply enter into the net proceeds from Pooling and Servicing Agreement and Purchase Agreement on or prior to the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the UnderwriterClosing Date.
(f) As soon The Company agrees to take such action as it is practicable, but you shall reasonably request following the Closing Date in connection with any event not later than the first (lst) day subsequent transfer of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsDesignated Certificates by you.
Appears in 1 contract
Samples: Certificate Purchase Agreement (Aegis Consumer Funding Group Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company agrees with the Underwriter that the Company will cooperate (i) if the procedure in all respects Rule 430A of the Rules and Regulations is followed, prepare and timely file with the SEC under Rule 424(b) of the Rules and Regulations a Prospectus in making a form reasonably acceptable to the Prospectus effective Underwriter containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and will Regulations; (ii) not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you or your counsel the Underwriter shall have reasonably objected on reasonable grounds in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations; and (iii) file on a timely basis all reports and any definitive proxy or applicable state law. As soon as information statements required to be filed by the Company is advised thereofwith the SEC subsequent to the date of the Prospectus and prior to the termination of the Offering of the Underwriter's Shares by the Underwriter.
(b) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or would reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(c) The Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, Underwriter promptly (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to thereto shall have become effective; (ii) of receipt of any comments from the SEC; (iii) of any request of the SEC for amendment of the Registration Statement or Prospectus, or the filing of any for supplement to the Prospectus or for any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, information; and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any the Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, preventing or suspending the use of the Prospectus and to obtain as soon as reasonably possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. if issued.
(d) The Company will prepare and file cooperate with the states, promptly upon your request, any such amendments or supplements Underwriter in endeavoring to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and qualify the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities Shares for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate have designated and will make such applications applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securitiesany 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 statements, reports, and reports other documents as are or may be required to continue such qualification qualifications in effect for so long a period as the Underwriter may reasonably request for distribution of the Underwriter's Shares by the Underwriter.
(e) Upon request, the Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any Preliminary Prospectus as the Underwriter may reasonably request.
(c) So long as any of the Securities. Upon request, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to youto, from time to time until or upon the effective date order of, the Underwriter during the period when delivery of a Prospectus is required under the ProspectusAct, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you the Underwriter may from time reasonably request. The Company will deliver to time the Underwriter, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith and all documents incorporated by referenced therein (excluding exhibits), and will upon request deliver to the Underwriter such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith and the documents incorporated by reference therein (excluding exhibits) that may reasonably be requested) and of all amendments thereto, as the Underwriter may reasonably request.
(ef) The Company will apply comply with the net proceeds from Securities Act, the sale Exchange Act and the Rules and Regulations so as to permit the completion of the Securities distribution of the Underwriter's Shares as contemplated in this Agreement and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion If during the period in which a prospectus 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 proceeds shall be used, directly Company or indirectly, to acquire any securities issued by in the Company, without the prior written consent reasonable opinion of the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the SEC an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fg) As The Company will timely file such reports under the Exchange Act as are necessary to make generally available to holders of its securities as soon as it is may be practicable, but in any no event not later than the first (lst) day of the fifteenth (15th) full calendar month following 15 months after the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be auditedaudited but shall be in reasonable detail) covering a period of at least twelve (12) consecutive 12 months beginning commencing after the effective date of the Registration Statement, which shall will satisfy the requirements provisions of Section 11(a) of the Securities Act and (including Rule 158(a) 158 of the Rules and Regulations).
(h) Prior to the Closing Date, the Company will furnish to the Underwriter, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any quarterly period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(i) No offer, sale, contract for the sale, short sale, pledge or other disposition of any shares of Common Stock of the Company, securities convertible into or exchangeable or exercisable for shares of Common Stock or derivatives with respect to shares of Common Stock (or agreement for such) will be made, directly or indirectly, by the Company for a period of 180 days after the date of this Agreement otherwise than hereunder or with the prior written consent of the Underwriter; provided, that this provision will not restrict the Company from issuing shares of Common Stock upon the exercise of any option outstanding on the date hereof or from granting awards of or options to purchase shares of Common Stock pursuant to employee benefit plans described in the Prospectus and consistent with past practice.
(j) The Company has caused each executive officer and director of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance reasonably satisfactory to the Underwriter, pursuant to which each such Person shall agree not to (i) offer, sell, contract to sell, sell short, pledge or otherwise dispose of, whether directly or indirectly, any shares of Common Stock of the Company, securities convertible into or exchangeable or exercisable for shares of Common Stock or derivatives with respect to shares of Common Stock beneficially owned by such Person, (ii) enter into any transactions that would have the same effect, (iii) enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock, whether any of these transactions are to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iv) publicly disclose the intention to make any offer, sale, contract to sell, short sale, pledge or other disposition or to enter into any such other transaction, swap, hedge or other arrangement, (v) or request the registration of any of the foregoing under the Securities Act for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of the Underwriter (the "Lockup Agreements").
(k) The Company shall apply the net proceeds of its sale of the Shares as described under the heading "Use of Proceeds" in the Prospectus.
(l) 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.
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(n) For a period of three years following commencement of public sales in the Offering, the Company will provide the Underwriter with a right of first offer to act as the underwriter or placement agent for any security offerings by the Company and as financial advisor for any sale or merger of the Company, and the Company agrees to negotiate in good faith to engage the Underwriter for such purposes on commercially reasonable terms and conditions. This Section 5(n) shall remain in full force and effect regardless of (i) any termination of this Agreement or (ii) delivery of and payment for the Underwriter's Shares under this Agreement, except in case of a material breach of this Agreement by the Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatthat it will:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which Notify you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise youimmediately, and confirm the advice such notice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) when any event shall have occurred during the second business day following period commencing on the execution date hereof and delivery of this Agreementending on the Final Closing Date, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, Bridge Disclosure Statement or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain Disclosure Statement would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are were made. The preparation , not misleading, and furnishing (ii) of the receipt of any such amendment or supplement notification with respect to the Prospectus modification, rescission, withdrawal, or supplement to be attached to suspension of the Prospectus shall be without expense to youqualification or registration of the Bridge Units or Units, or of an exemption from such registration or qualification, in any jurisdiction. The Company will use its best efforts to prevent the best issuance of its ability comply with any such modification, rescission,, withdrawal, or suspension and if you so request, to obtain the Act, the Exchange Act and applicable state securities laws so lifting thereof as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawspromptly as possible.
(b) It will cooperate Not make any supplement or amendment to the Bridge Disclosure Statement or Disclosure Statement unless such supplement or amendment complies with the requirements of the Act and Regulation D and the applicable federal and/or state securities and "blue sky" laws and unless you shall have approved of such supplement or amendment in writing. If, at any time during the period commencing on the date hereof and ending on the Final Closing Date, any event shall have occurred as a result of which the Bridge Disclosure Statement or Disclosure
(c) Deliver without charge to the Placement Agent such number of copies of the Bridge Disclosure Statement or Disclosure Statement and any supplement or amendment thereto as may reasonably be requested by the Placement Agent.
(d) Not, directly or indirectly, solicit any offer to buy from, or offer to sell to any person any Bridge Units or Units, except through the Placement Agent.
(e) Use its best efforts to qualify or register the Securities Bridge Units and the Option Securities Units for offering and the Representative's Securities for initial sale under under, or establish an exemption from such qualification or registration under, the securities or "blue sky" laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for reasonably request; provided, however, that purpose, provided the Company shall will not be required obligated to qualify to do business as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification securities in effect for any jurisdiction in which it is not so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referencequalified. The Company will deliver to you, from time to time until the effective date not consummate any sale of the ProspectusBridge Units and Units in any jurisdiction or in any manner in which such sale may not be lawfully made; in this regard the Company shall be entitled to rely on the Placement Agent's representations herein, and the representations of Prospective Investors in the Subscription Agreement and Purchaser Questionnaire and on the Blue Sky qualifications effected by the Placement Agent's counsel.
(f) At all times during the period commencing on the date hereof and ending on the Final Closing Date, provide to each Prospective Investor or his Purchaser Representative (as defined in Regulation D), if any, on request, such information (in addition to that contained in the Bridge Disclosure Statement or Disclosure Statement) concerning the Bridge Offering and Offering, the Company and any other relevant matters, as many copies it possesses or can acquire without unreasonable effort or expense, and to extend to each Prospective Investor or his Purchaser Representative, if any, the opportunity to ask questions of, and receive answers from an officer of the Prospectus as you may reasonably request. The Company will deliver to you on concerning the effective date terms and conditions of the Prospectus Bridge Offering and thereafter for so long Offering and the business of the Company and to obtain any other additional information, to the extent it possesses the same or can acquire it without unreasonable effort or expense, as a Prospectus is such Prospective Investor or Purchaser Representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such Prospective Investor or Purchaser Representative, as the case may be.
(g) Provide to each Prospective Investor or his Purchaser Representative any information required to be delivered by Rule 502(b) of Regulation D.
(h) Disclose to each Prospective Investor, in writing, any material relationship between such Prospective Investor's Purchaser Representative, if any, or its affiliates, on the one hand, and the Company or its affiliates, on the other hand, which, to the knowledge of the Company, then exists or is understood to be contemplated or has existed at any time during the previous two years and any compensation received or to be received as a result of such relationship.
(i) Before accepting any subscription to purchase Bridge Units or Units from, or making any sale to, any Prospective Investor, have reasonable grounds to believe and will believe (after making reasonable inquiry as required under the -21- 22 Subscription Agreements and Investor Questionnaires) that (A) such Prospective Investor meets the suitability requirements for investing in the Bridge Units or Units as set forth respectively in the Bridge Disclosure Statement or Disclosure Statement, and (B) such Prospective Investor is an Accredited Investor (as defined in Regulation D).
(j) Notify you promptly of the acceptance or rejection of any subscription. The Company shall not (i) accept subscriptions from, or make sales of the Bridge Units or Units to, any Prospective Investors who are not, to the Company's knowledge, accredited investors, or (ii) unreasonably reject any subscription for the Bridge Units or Units.
(k) File five copies of a Notice of Sales of Securities on Form D with the Securities and Exchange Commission (the "Commission") no later than 15 days after the first sale of the Bridge Units or Units and file a final notice on Form D with the Commission no later than 30 days after the last sale of the Bridge Units or Units. The Company shall file promptly such amendments to such Notice on Form D as shall become necessary and, as requested by you, shall also comply with any filing requirement imposed by the laws of any state or jurisdiction in which offers and sales are made. The Company shall furnish you with copies of all such filings.
(1) Not, directly or indirectly, engage in any act or activity which may jeopardize the status of the Offering and sale of the Bridge Units or Units as exempt transactions under the Act and or under the Rules and Regulations as many copies securities or "blue sky" laws of any jurisdiction in which the Bridge Offering or Offering may be made. Without limiting the generality of the Prospectusforegoing, and notwithstanding anything contained herein to the contrary, the Company shall not, directly or indirectly, engage in final formany offering of securities which, or as thereafter amended or supplementedif integrated with the Offering in the manner prescribed by Rule 502(a) of Regulation D and applicable releases of the Commission, as you may from time to time reasonably request.jeopardize the status
(em) The Company will apply Apply the net proceeds from the sale of the Securities Bridge Units and the Option Securities substantially Units as set forth in the manner set forth under "Use of Proceeds" in Bridge Disclosure Statement or Disclosure Statement.
(n) Not, during the Prospectus. No portion of period commencing on the proceeds shall be useddate hereof and ending on the Final Closing Date, directly issue any press release or indirectlyother communication, or hold any press conference with respect to acquire any securities issued by the Company, its financial condition, results of operations, business, properties, assets, or liabilities, Bridge Offering or the Offering, without the your prior written consent, except as required by applicable securities laws.
(o) During the period commencing on the date hereof and ending on the Final Closing Date, the Company shall not, without prior notice to and consent of the UnderwriterPlacement Agent subject to Schedule B of the Disclosure Statement: (A) issue any securities or incur any liability or obligation, for borrowed money; (B) enter into any transaction not in the ordinary course of business; or (C) declare or pay any dividend on its capital stock except for the regular quarterly dividend on its outstanding preferred stock.
(fp) As soon as it is practicableNot, but under any Stock Option Plan now or hereafter in effect, grant options for the issuance by the Company in any event not later one year, on an aggregate basis, to purchase more than the first (lsti) day 200,000 shares of the fifteenth Company's Common Stock during the one (15th1) full calendar year period commencing from the date hereof and (ii) 100,000 shares of the Company's Common Stock for each of the next three (3) years thereafter.
(q) Not during the 12-month period following the effective date Final Closing Date, except with respect to outstanding warrants or options or warrants issued in connection with the Bridge Offering or Offering, offer for sale or sell any shares of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.its
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you ------------------------ the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, the Company will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel and our counsel to the Underwriter the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter or dealer of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.is
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:: ------------------------
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to the Underwriters of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice Underwriters in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which the Underwriters have not been furnished with a copy a reasonable time prior to such copies of filing or to which the Prospectus Underwriters reasonably object in connection writing or which is not in compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your the Underwriters' request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, Underwriters' judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, and applicable state securities laws.
(b) It the Company will cooperate to qualify promptly advise the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate Underwriters thereof and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statements statement or omission or an amendment or supplement which will effect such compliance and reports will use its best efforts to cause the same to become effective as are or may be soon as possible; and, in case any Underwriter is required to continue deliver a prospectus after such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the publicnine-month period, the Company, upon request, but at its expensethe expense of such Underwriter, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish promptly prepare such amendment or amendments to the Underwriter Registration Statement and such Prospectus or Prospectuses as soon as practicable after may be necessary to permit compliance with the end requirements of each fiscal year, a balance sheet Section 10(a)(3) of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to the Underwriters or mail copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents in each case as soon as available and in such quantities as the Underwriters may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with the Underwriters and their counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as the Underwriters designate and under Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Underwriters promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or overt threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with the Underwriters' cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report to Shareholders of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days from the date of the Prospectus, without the prior written consent of either Xxxxxxxxxx Securities or the Underwriters acting jointly (the giving or withholding of such written consent being in the sole discretion of Xxxxxxxxxx Securities, or the Underwriters acting jointly, as the case may be), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security, except for (i) the grant of options in the ordinary course of business pursuant to existing stock option plans described in the Prospectus, or (ii) the issuance of shares of Common Stock pursuant to the exercise of director, officer or employee stock options that are disclosed in the Registration Statement or Prospectus and are outstanding on the date of the Prospectus.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus and will file with the Commission, and deliver copies thereof to the Representatives upon any such filing, such reports on Form SR as may be required pursuant to Rule 463 under the Act.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will use its best efforts to maintain such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will use its best efforts to designate the Common Stock for quotation as a National Market System security on the NASD Automated Quotation System. The Representatives may, in their sole discretion and on behalf of the Underwriters, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Samples: Underwriting Agreement (Jones Education Networks Inc)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate in all respects in making cause the Prospectus effective (or, if permitted by Rule 424(c) under the Act, the prospectus supplement relating to the Securities that forms a part thereof), properly completed, to be filed with the Commission pursuant to Rule 424(b)(2) (or, if applicable and consented to by you, pursuant to Rule 424(b)(5)) within the time periods prescribed by Rule 424(b) and Rule 430A, 430B or 430C under the Act; will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act; and will not at any time, whether before or after the effective date, file any amendment provide evidence satisfactory to or supplement to the Prospectus you of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state lawsuch timely filing. As soon as the Company is advised thereof, the The Company will advise you, and confirm the advice in writing, of the receipt you promptly of any comments of the Commission proposal to amend or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to supplement the Registration Statement or Prospectus, the Prospectus (other than an amendment or a supplement relating solely to an offering of securities other than the Securities or by reason of filing a report under the Exchange Act that is incorporated by reference in the Registration Statement or the Prospectus and does not relate specifically to the Securities); the Company will also advise you promptly of the filing of any supplement to such amendment or supplement, and of the Prospectus or any amended Prospectus, of any request made institution by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness proceedings in respect of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock proceeding pursuant to Section 8A of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposesAct, and will use its best efforts to prevent the issuance of any such stop order and, if issued, and to obtain as soon as possible its lifting if issued; before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, whether before or after the lifting time that the Registration Statement becomes effective, the Company will furnish to the Underwriters and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, for review and will not prepare, use, authorize, approve, refer to or dismissal thereof. The Company has caused file any such Issuer Free Writing Prospectus to which the Underwriters reasonably object.
(b) (i) If at any time when a prospectus relating to the Securities is required to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act (or required to be delivered in connection with but for Rule 172 under the initial sale of the Securities, the Option Securities and the Representative's Securities of Act) any event occurs as a result of which the Company has knowledge and which materially affects the CompanyProspectus as then amended or supplemented would include an untrue statement of a material fact, or the securities thereof, and which should be set forth in an amendment of or a supplement omit to the Prospectus in order state any material fact necessary to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under the Act to be deliveredwhich they were made, not misleading, or in case if it shall be is necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company promptly will forthwith prepare and furnish to you copies of file with the Commission an amendment or supplement that will correct such amended Prospectus statement or of omission or an amendment that will effect such supplement to be attached compliance and (ii) if at any time prior to the Prospectus, in such quantities Closing Date any event shall occur or condition shall exist as you may reasonably request, in order that a result of which the Prospectus, Time of Sale Information as so then amended or supplemented, will not contain supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances under which they are were made, not misleading, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (a) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Underwriters may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading. The preparation expense of complying with the requirements of this Section 5(b) shall be borne (1) during the period of nine months after the date of this Agreement, by the Company, and furnishing (2) after the expiration of any such amendment or supplement to nine-month period, by you, if you request copies of the Prospectus or of an amendment or amendments of or a supplement to be attached or supplements to the Prospectus shall be without expense Prospectus.
(c) As soon as practicable but in no event later than 16 months after the date of this Agreement, the Company will make generally available to you. its security holders an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to you copies of the Registration Statement (including all exhibits), the Prospectus, each Issuer Free Writing Prospectus (to the best of its ability comply with the Actextent not previously delivered) and all amendments and supplements to such documents, the Exchange Act in each case as soon as available in such quantities as you request (and applicable state securities laws so as will make available to permit the initial offer and sales your counsel a manually executed copy of the SecuritiesRegistration Statement and manually executed copies of all amendments thereto to the extent not previously furnished to such counsel, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsin each case with all exhibits).
(be) It The Company will cooperate to qualify arrange for the qualification of the Securities for sale and the Option Securities and the Representative's Securities determination of their eligibility for initial sale investment under the securities laws of such jurisdictions as you may designate and will make continue such applications and furnish such information qualifications in effect so long as may be required for the distribution; provided, however, that purpose, provided in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a dealer general consent to service of process in securities. The any such jurisdiction.
(f) During the period of two years hereafter, and if not publicly available through the Commission’s website, the Company will, will furnish to you from time to time, prepare and file such statements and reports information concerning the Company as are or may be required to continue such qualification in effect for so long as the Underwriter you may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(eg) The Company will apply pay all expenses incident to the net proceeds from the sale performance of its obligations under this Agreement, and will reimburse you for any expenses (including fees and disbursements of counsel) incurred by you in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the Option Securities substantially in printing of memoranda relating thereto and for any fees charged by investment rating agencies for the manner set forth under "Use of Proceeds" in the Prospectus. No portion rating of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the UnderwriterSecurities.
(fh) As soon as it is practicable, but in any event not later than From the first (lst) day of the fifteenth (15th) full calendar month following the effective date of this Agreement through the Registration Statementclose of business on the Closing Date, the Company will make available not, without your prior consent, offer or sell (other than upon exercise of warrants therefor), [any of its unsubordinated debt securities or ]any of its subordinated debt securities (regardless of maturity) other than the Securities.
(i) The Company will, pursuant to its security holders and reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after Commission in accordance with Rule 433 under the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsAct.
Appears in 1 contract
Samples: Underwriting Agreement (First Chicago NBD Capital I)
Covenants of the Company. The Company covenants and agrees with you the Underwriters that:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not yet been declared effective and will not at any time, whether before or after on the effective date, file any amendment to or supplement to the Prospectus date of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofthis Agreement, the Company will advise use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434. The Company will notify you immediately (and, if requested by you, and will confirm the advice such notice in writing, of the receipt of any comments of the Commission or any state securities department, ) (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing post-effective amendment thereto or suspending of the use initiation, or the threatening, of any Prospectus or any order suspending trading in the Common Stock proceedings therefore, (v) of the Company, or receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the SecuritiesShares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or be filed pursuant to Rule 424(b)(3424(b) not later than or Rule 434) that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of the happening, Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Shares is required under the Act to be delivered in connection with under the initial sale of the SecuritiesSecurities Act, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the best Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of its ability comply with the ActUnderwriters such number of copies of any preliminary prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsRegistration Statement, and applicable state securities lawsall amendments of and supplements to such documents, if any, as you may reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes be obligated in 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.
(d) It will deliver connection therewith to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long qualify as a Prospectus is required foreign corporation or to be delivered under the Act and the Rules and Regulations as many copies execute a general consent to service of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestprocess.
(e) The Company will apply make generally available (within the net proceeds from the sale meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but not later than 45 days after the Option end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings statement (in form complying with the provisions of Rule 158 of the Securities substantially in Act Regulations) covering a period of at least twelve consecutive months beginning after the manner set forth under "Use effective date of Proceeds" the Registration Statement.
(f) Other than the Company’s sale of Shares hereunder, the Company’s issuance of Common Stock pursuant to any existing employee benefit plans or upon the exercise, conversion or exchange of any currently outstanding stock options or warrants and as otherwise described in the Prospectus. No portion , during the period of 180 days from the proceeds shall be useddate hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to acquire (i) offer, pledge, sell, or contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option right or warrant to purchase, lend, or otherwise transfer or dispose of any shares of Common Stock or any securities issued convertible into or exercisable or exchangeable for Common Stock, or (ii) 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 the 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 any interest therein or announce any intention to do any of the Company, foregoing without the prior written consent of the UnderwriterUnderwriters. The Company will obtain the undertaking of each of its officers and directors and such of its other stockholders as have been heretofore designated by you and listed in Schedule II-A attached hereto not to engage in any of the aforementioned transactions or to announce their intention to do any of the foregoing on their own behalf.
(fg) As soon as it is practicable, but in any event not later than the first (lst) day During a period of the fifteenth (15th) full calendar month following three years from the effective date of the Registration Statement, the Company will make available furnish to you copies of (i) all reports to its security holders stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Underwriter an earnings statement Company with the Commission or any national securities exchange.
(which need not h) The Company will apply its net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be auditedlisted on the Nasdaq Global Market.
(j) covering In the event the Common Stock becomes delisted on the Nasdaq Global Market, [then the Company will register and remain covered by Standard & Poor’s Corporation Records Guide or another recognized securities manual for a period of three years commencing on the Closing Date.]
(k) The Company shall at least twelve all times prior to the completion of the Offering allow, or take such actions as are necessary to facilitate, the Underwriters and their representatives to conduct all due diligence on the Company and the Shares which the Underwriters may reasonably require.
(l) The Company shall maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock and to cause such transfer agent to furnish upon request of the Underwriters a duplicate copy of the daily transfer sheets prepared by the transfer agent during the 12) consecutive months beginning after -month period commencing on the effective date of the Registration StatementStatement and instruct the transfer agent to timely provide, which shall satisfy upon the requirements of Section 11(a) request of the Act and Rule 158(aUnderwriters, from time to time, duplicate copies of such transfer sheets and/or a duplicate copy of a list of stockholders, all at the Company’s expense, for a period of four years after such 12-month period.
(m) At the time of purchase of the Rules Firm Shares, the Company agrees to sell to Xxxxxx for a total purchase price of $100.00, a Warrant (the “Firm Share Warrant”) entitling Xxxxxx or its assigns to purchase [___] shares of Common Stock at a price equal to $ per share. At the time of purchase of the Additional Shares, if any, the Company agrees to sell to Xxxxxx for a total purchase price of $100.00, an additional Warrant (the “Additional Shares Warrant” and Regulationsalong with the Firm Shares Warrant, the “Warrants”) entitling Xxxxxx or its assigns to purchase [___] shares of Common Stock at a price equal to $ per share. The Warrants shall be exercisable for four years commencing six months from the time of purchase and shall contain cashless exercise provisions and anti-dilution provisions as are reasonably acceptable to Xxxxxx. If the Company shall at any time during the period in which the Warrants are exercisable register an offering of its securities on Form X-0, X-0, X-0 or the equivalent (including a post-effective amendment to Form S-1, but not a Registration Statement on Forms S-4 or S-8), the holders of a Warrant shall have the option of choosing to have included therein without any cost to themselves, any or all of the shares of Common Stock issuable upon exercise of such Warrant. In connection therewith, the Company shall give such holders at least 30 days’ written notice prior to the filing of a Registration Statement. Such notice shall be given each time a Registration Statement is contemplated until such time as all of the Warrants have been exercised. A holder of a Warrant shall exercise its Warrant by giving written notice within 15 days of the receipt of the aforesaid notice of the Company’s intent to file a Registration Statement. In addition, holders of a majority of the Warrants shall also have a one time right to compel the Company to register for public sale the shares of Common Stock issuable upon exercise of such Warrant. Immediately after the receipt of the written notice demanding registration, the Company shall give a notice to the other holders of such Warrants who shall have 20 days to elect to include their shares of Common Stock in such Registration Statement. The Company shall promptly file such Registration Statement and use its best efforts to have it declared effective and keep it current and accurate for a period of 180 days thereafter (or 12 months if on Form S-3). No holders of a Warrant shall be required to exercise a Warrant as a condition of registration. All costs associated with the Registration Statements shall be paid by the Company, except for attorney’s fees of counsel to the holders of the Warrant. Until the earlier of the expiration or exercise of a Warrant, the Company shall keep reserved sufficient shares of Common Stock for issuance upon exercise of such Warrant.
(n) The Company hereby agrees to afford the Underwriters the right, but not the obligation, commencing on the effective date and terminating three years thereafter, to designate one non-voting advisor to the Board of Directors of the Company. The designee, if any, and Xxxxxx will receive notice of, and the designee, if any, will be entitled to attend each meeting of the Board of Directors in according with Delaware law, at such designee’s own expense.
(o) The Company hereby agrees to afford Xxxxxx the right, but not the obligation, commencing on the effective date and terminating three years thereafter, to sell for the account of the Company’s current and future officers and directors (collectively, the “144 Sellers”) any securities sold pursuant to Rule 144 under the Securities Act, and the Company shall require each of the 144 Sellers to execute an agreement containing the terms contained in this subsection. Each of the 144 Sellers agrees to give notice to Xxxxxx of 144 Seller’s intent to offer for sale any shares of Common Stock. Xxxxxx will have 48 hours excluding Saturdays, Sundays and holidays when the Nasdaq Global Market is closed (“48 Hours”) to make an offer for the entire number of shares covered by the notice. Assuming that Xxxxxx makes such an offer within 48 Hours, the 144 Seller will have 48 Hours to sell the entire number of shares through or to another broker-dealer for the net price which is better than the price offered by Xxxxxx (the “Net Price”). If 144 Seller does so, then Xxxxxx shall have no rights to purchase for its account or sell for the account of the 144 Seller the shares covered by the notice. The Net Price shall be adjusted during the 48 Hours by the amount of any change upwards or downwards in the last sales price. If the 144 Seller gives notice to Xxxxxx that it is unable to obtain a better Net Price, Xxxxxx may purchase all the shares contained in the notice for its own account or sell all of the shares contained in the notice for the account of the 144 Seller at the Net Price, subject to adjustment as provided in this subsection, or the 144 Seller may thereafter sell such shares through another broker-dealer.
(p) In the event the Department of Corporate Financing of the Financial Industry Regulatory Authority (“FINRA”) shall determine that any common stock of the Company or stock options issued to, or financial consulting or other agreements of the Company, with any person or persons who are unaffiliated with the Underwriters are nevertheless considered underwriting compensation, the Company will take such action as FINRA may require to prevent such stock options or agreements from having any adverse effect on the Underwriters allowable compensation. In the event that FINRA still deems the Underwriters compensation to be unacceptable, the Underwriters shall, in their sole discretion, make such further adjustments to the form of their compensation as they deem necessary to obtain FINRA clearance, so long as such compensation adjustments do not increase the amount of total compensation provided for in this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Film Department Holdings, Inc.)
Covenants of the Company. The Company hereby covenants and agrees with you that:
(a) It will cooperate Except with the prior written consent of the Co-Placement Agents, the Company shall not, at any time prior to the Closing, take any action which would cause any of the representations, warranties and covenants made by it in all respects this Agreement, the Memorandum or the Subscription Documents not to be complete, accurate and correct in making any material respect on and as of the Prospectus effective Closing Date with the same force and will effect as if such representations, warranties and covenants had been made on and as of such date.
(b) If, at any time prior to the Closing:
(i) any event shall occur which materially affects the Company or as a result of which it might become necessary to amend or supplement the Memorandum so that the representations, warranties and covenants contained herein or in the Transaction Documents remain materially true; or
(ii) in case it shall, in the opinion of counsel to the Co-Placement Agents and the Company, be necessary to amend or supplement the Memorandum to comply with Regulation D or any other applicable securities laws or regulations, the Company shall, in the case of (i) above, promptly notify the Co-Placement Agents and, in the event of either (i) or (ii) above shall, at its sole cost, prepare and furnish to the Co-Placement Agents copies of appropriate amendments and/or supplements to the Memorandum in such quantities as the Co-Placement Agents may request. The Company shall not at any time, whether before or after the effective dateClosing, file prepare or use any amendment to or supplement to the Prospectus Memorandum of which you the Co-Placement Agents shall not previously have been advised and furnished with a copy copy, or to which you the Co-Placement Agents or your their counsel shall will have reasonably objected in writing or orally (confirmed in writing within 72 hours), or which is not in compliance in all material compliance respects with the Act Securities Act, the Regulations and the Rules and Regulations or other applicable state lawsecurities laws. As soon as the Company is advised thereof, the Company will shall advise youthe C-Placement Agents and their counsel, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyMemorandum, or of the suspension of the qualification or registration of the Securities, the Option Securities for offering or the Representatives suspension of any exemption for such qualification or registration of the Securities for offering in any jurisdiction, or of the institution or threatened institution of any proceedings for any of such purposes, and will the Company shall use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as reasonably possible the lifting or dismissal thereof. .
(c) The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to shall comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the ActRegulations, the Exchange Act and Act, all applicable state securities laws and the rules and regulations thereunder in the states in which the Co-Placement Agents’ counsel has advised the Co-Placement Agents that the Units are qualified or registered for sale or exempt from such qualification or registration, so as to permit the initial offer and continuance of the sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsUnits, and applicable state securities lawswill file with the SEC, and shall promptly thereafter forward to the Co-Placement Agents, any and all reports on Form D as are required.
(bd) It will cooperate The Company shall use its commercial best efforts to qualify the Securities and the Option Securities and the Representative's Securities Units for initial sale (or seek exemption therefrom) under the securities laws of such jurisdictions in the United States as you may designate be mutually agreed to by the Company and will the Co-Placement Agents, and the Company shall make such applications and furnish such information as may be required for that purposesuch purposes, provided that the Company shall not be required to qualify as a foreign corporation or a dealer in securitiesany jurisdiction. The Company willshall, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification qualifications in effect for so long a period as the Underwriter Co-Placement Agents may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will shall place a legend on the certificates representing the Common Stock, Warrants and the Warrant Shares issued to subscribers stating that the securities evidenced thereby have not been registered under the Securities Act or applicable state securities laws, setting forth or referring to the applicable restrictions on transferability and sale of such securities under the Securities Act and applicable state laws.
(f) The Company shall apply the net proceeds from the sale of the Securities and the Option Securities substantially Units for such purposes as are specifically described in the manner set forth under "“Use of Proceeds" ” section of the Memorandum. Except as may be expressly and specifically set forth in the Prospectus. No portion “Use of Proceeds” section of the Memorandum, the net proceeds of the Offering shall not be used, directly or indirectly, used to acquire pay any securities issued by obligation and/or repay indebtedness of the Company, including, without limitation, indebtedness to officers, directors or stockholders of the Company without the prior written consent of the UnderwriterCo-Placement Agents.
(fg) As soon During the Offering Period, the Company shall afford prospective purchasers of Units an opportunity to ask questions of and receive answers from an officer of the Company concerning the terms and conditions of the Offering and the opportunity to obtain such other additional information necessary to verify the accuracy of the Memorandum to the extent it possesses such information or can acquire it without unreasonable expense.
(h) Except with the prior written consent of the Co-Placement Agents (which consent shall not be unreasonably withheld) or as it is practicableexpressly disclosed in the Memorandum, but the Company shall not, at any time prior to the Termination Date, engage in or commit to engage in any event not later than transaction outside the first ordinary course of business or issue, agree to issue or set aside for issuance any securities (lstdebt or equity) day or any rights to acquire any such securities except as expressly set forth in the Memorandum.
(i) Until the Termination Date, neither the Company nor any person or entity acting on its behalf shall negotiate with any other placement agent or underwriter with respect to a private or public offering of the fifteenth Company’s debt or equity securities in the United States except to the extent that such a negotiation is contemplated in the Memorandum. Neither the Company nor anyone acting on its behalf shall, until the Termination Date, offer for sale to, or solicit offers to subscribe for Units from, or otherwise approach or negotiate in respect thereof with any other person.
(15thj) full calendar month following Until the effective date earlier of (i) the Registration StatementTermination Date and (ii) the Closing, the Company will make available not issue any press release, grant any interview, or otherwise communicate with the media in any manner whatsoever without the Co-Placement Agents’ express prior written consent, unless in the reasonable judgment of the Company and its counsel, and after notification to its security holders the Co-Placement Agents, such press release or other communication is required by law.
(k) The Company shall pay all expenses incurred in connection with the preparation and printing of all necessary offering documents, amendments, and instruments related to the Offering and the Underwriter an earnings statement issuance of the Units, the Securities, the Warrant Shares and the Agent’s Warrants, and shall also pay its own expenses for accounting fees, legal fees, bound volumes of closing documents, and other costs involved with the Offering. The Company shall provide at its own expense such quantities of the Memorandum and other documents and instruments relating to the Offering as the Co-Placement Agents may reasonably request. In addition, the Company shall pay all filing fees and costs for Blue Sky services and related filings and expenses of the Co-Placement Agents’ counsel with respect to Blue Sky exemptions (collectively, the “Blue Sky Expenses”), which need shall be paid to the Co-Placement Agents’ counsel upon the First Closing (or upon demand by the Co-Placement Agents if a First Closing does not incur within a reasonable period of time). Additional Blue Sky Expenses incurred after the First Closing, if any, shall be auditedpaid at any subsequent Closing, as applicable. The Blue Sky filings shall be prepared by the Co-Placement Agents’ counsel for the Company’s account. Further, as promptly as practicable after the Closing, the Company shall prepare, at its own expense, velobound "closing binders" relating to the Offering and will distribute such binders to the individuals designated by counsel to the Co-Placement Agents. Lastly, upon a determination by the Co-Placement Agents that one or more FINRA Rule 2710 filings are required, the Company will pay all filing fees costs and expenses in connection with such filing to be prepared by the Co-Placement Agents’ counsel.
(l) covering On or before the Closing Date, the Company shall deliver to the Co-Placement Agents, lock up agreements (the “Lock Up Agreements”) executed by among others, (i) the original shareholders of BCT; and (ii) the original shareholder of Forever Well (collectively, the “Shareholders”) pursuant to which the Shareholders shall be prohibited from selling any shares of stock of the Company for a period of at least twelve (12) consecutive months beginning one year after the effective date of the Registration Statement.
(i) Effective as of the Closing Date, which the Co-Placement Agents (and/or their designee) shall satisfy have the requirements right to nominate, and the Company shall use its best efforts to have appointed, one (1) person (the “Placement Agent Director”) to serve as a member of Section 11(aPubco’s Board of Directors. The Company covenants and agrees to take, or to cause to be taken on its behalf, all action necessary and/or reasonably requested by the Co-Placement Agents to cause the Placement Agent Director to be appointed to the Board of Directors within ten (10) business days of the Placement Agent’s nomination of such person. The Placement Agent Director’s appointment to Pubco’s Board of Directors shall be for a period of two (2) years commencing on the date of such person’s appointment to the Board of Directors.
(ii) In the event that at any time and/or from time to time, a Placement Agent Director is not serving as a Director on Pubco’s Board of Directors for any reason or no reason, then the Placement Agent may designate one (1) person (the “Observer”) to attend all meetings (including telephone meetings) of Pubco’s Board of Directors for a two (2) year period, commencing on the Act Closing Date. The Observer shall be entitled to attend all such meetings and Rule 158(ato receive all notices and other correspondence and communications sent by Pubco to its Board of Directors as when and in the same manner as provided to the other Directors; provided, however, the Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided, further, that Pubco reserves the right to withhold any information and to exclude the Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between Pubco and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the Observer is a competitor of Pubco.
(m) During the one (1) year period following the final Closing, the Company shall not file and/or issue any shares of the Rules and RegulationsCommon Stock pursuant to an S-8 Registration Statement.
Appears in 1 contract
Samples: Co Placement Agent Agreement (CHINA BAICAOTANG MEDICINE LTD)
Covenants of the Company. The Company covenants and agrees with you each Manager that:
(a) It will cooperate The Company shall use its best efforts to cause the Registration Statement to become effective as promptly as possible and to maintain it in all respects in making effect. If the Prospectus Registration Statement has become or becomes effective and will not at any timepursuant to Rule 430A of the Regulations, whether before or after filing of the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance Prospectuses with the Act and Commission is otherwise required under Rule 424(b) of the Rules and Regulations or applicable state law. As soon as the Company is advised thereofRegulations, the Company will shall file the Prospectuses, properly completed, with the Commission pursuant to Rule 424(b) of the Regulations within the time period therein prescribed and shall provide evidence satisfactory to you of such timely filing. The Company shall promptly advise youyou (and, and if requested, confirm the such advice in writing), of the receipt of any comments of the Commission or any state securities department, (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to thereto has become effective, (ii) of the Registration Statement initiation or Prospectusthreatening of any proceedings for, or receipt by the filing Company of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information notice with respect theretoto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the SecuritiesShares for sale in any jurisdiction or the issuance by the Commission of any order suspending the effectiveness of the Registration Statement and (iii) of receipt by the Company or any representative of or attorney for the Company of any other communications from the Commission relating to the Company, the Option Securities Registration Statement, any Preliminary Prospectus, the Prospectuses or the Representatives Securities for offering in any jurisdiction, or of transactions contemplated by the institution of any proceedings for any such purposes, and will use its best efforts Underwriting Agreements. The Company shall make every reasonable effort to prevent the issuance of an order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and, if any such order and, if is issued, to obtain its lifting as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall not file the Prospectus (in form and substance satisfactory any amendment to the Underwriter) Registration Statement or transmit any amendment of or supplement to the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) Prospectuses before or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date Effective Date to which you shall reasonably object after being timely furnished in advance a copy thereof unless the Company shall conclude, upon the advice of counsel, that any such amendment must be filed at a time prior to obtaining such consent.
(b) Within the Registration Statement. In case of time during which the happening, at any time within such period as a Prospectus is Prospectuses are required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, Company shall comply with all requirements imposed upon it by the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the ProspectusAct, as now or hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and by the Prospectuses. If, during such period, any event shall occur as a result of which the Prospectuses as then amended or supplemented, will not contain supplemented include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading made therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend the Registration Statement or supplement the Prospectuses to comply with the Act and furnishing of any such the Regulations, the Company shall notify you promptly and prepare and file with the Commission an appropriate post-effective amendment to the Registration Statement or supplement to the each Prospectus (in form and substance reasonably satisfactory to you) that will correct such statement or supplement omission and shall use its best efforts to be attached have any such post-effective amendment to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so Registration Statement declared effective as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawssoon as possible.
(bc) It will The Company shall promptly deliver to you two manually-signed copies of the Registration Statement, including exhibits and all amendments thereto, and to those persons (including your counsel) whom you identify to the Company, such number of conformed copies of the Registration Statement, with exhibits, each Preliminary Prospectus, the Prospectuses and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company shall cooperate with the Managers, the Underwriters and Weil, Gotshal & Xxxxxx LLP ("Underwriters' Counsel") in connection with their efforts to qualify or register the Securities and the Option Securities and the Representative's Securities Shares for initial sale under the state securities (or "Blue Sky") or foreign laws of such jurisdictions as you may designate and will make shall request, shall execute such applications and documents and furnish such information as reasonably may be required for such purpose and shall comply with such laws so as to continue such registrations and qualifications in effect for so long as may be required to complete the distribution of the Shares; provided, however, that purpose, provided in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports any jurisdiction in which it is not so qualified as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securitiesdate hereof, the Option Securities or the Representative's Securities remain outstanding (ii) file a consent to service of process in the hands any jurisdiction in any action other than one arising out of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet offering or sale of the Company as at the end of Shares in such fiscal year, together with statements of operations, shareholders' equity, and changes jurisdiction or (iii) become subject to taxation in cash flow of the Company for such fiscal year, all any jurisdiction in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or which it is not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for now so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestsubject.
(e) The Company shall make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to you, in such numbers as you reasonably may request for distribution to the Managers, as soon as practicable but in no event later than 45 days after the end of its fiscal quarter in which the first anniversary date of the Effective Date occurs, an earnings statement, covering a period of at least twelve consecutive full calendar months commencing after the effective date of the Registration Statement, that satisfies the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(f) During a period of 180 days from the date of this Agreement, the Company shall not, without the prior written consent of Bear, Xxxxxxx, (i) issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any shares of its capital stock (or any securities convertible into, exercisable for or exchangeable for shares of its capital stock) other than the Company's issuance and sale of Shares in accordance with the Underwriting Agreements and the issuance of up to 4,621,000 shares of Common Stock (or options exercisable for up to such number of shares) reserved for issuance pursuant to the Company's Stock Option Plan, or (ii) acquire, or agree or commit to acquire or publicly announce its intention to acquire, directly or through a subsidiary, assets or securities of any other person, firm or corporation in a transaction or series of related transactions that would be material to the Company and its subsidiaries, taken as a whole. In addition, the Company has obtained and delivered to you a written undertaking from HFS Incorporated that, during the period of 180 days from the date of this Agreement, without the prior written consent of Bear, Xxxxxxx, such entity will not sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any shares of capital stock (or any securities convertible into, exercisable for or exchangeable for shares of capital stock) of the Company or any of its subsidiaries.
(g) During the three years following the Effective Date, the Company shall furnish to Bear, Xxxxxxx, in such quantity as Bear, Xxxxxxx may reasonably request for distribution to the Managers, copies of (i) all reports of the Company to its stockholders, (ii) all reports, financial statements, and proxy or information statements filed by the Company with the Commission or any national securities exchange and (iii) such other information concerning the Company and its affairs as Bear, Xxxxxxx may reasonably request from time to time.
(h) The Company shall apply the net proceeds from the sale of the Securities and Shares to be sold by it under the Option Securities substantially Underwriting Agreements in the manner set forth under "Use of Proceeds" in the ProspectusProspectuses. No portion The Company shall take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" or a company "controlled" by an "investment company" within the meaning of such terms under the Investment Company Act.
(i) The Company shall use its best efforts promptly to cause the Shares to be listed on the NYSE and shall take all actions necessary to comply with the rules and regulations of the proceeds NYSE in order to maintain the listing of the Shares on the NYSE.
(j) The Company shall comply with all registration, filing and reporting requirements of the Exchange Act and the rules and regulations thereunder, which may from time to time be usedapplicable to the Company.
(k) The Company shall comply with all provisions of all undertakings contained in Part II of the Registration Statement.
(l) Prior to the Closing Date and, directly if the International Option is exercised, until the Additional Closing Date, the Company shall issue no press release or indirectlyother communication or hold any press conference with respect to the offerings of the Shares, to acquire any securities issued by or the financial condition, results of operations, operations, business properties, assets, liabilities, or prospects of the Company, without the your prior written consent of the Underwriterconsent.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: International Underwriting Agreement (Avis Rent a Car Inc)
Covenants of the Company. The Company covenants and agrees with you thatas follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which notify you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, immediately and confirm the advice notice in writingwriting (i) when the Registration Statement and any amendment thereto shall have become effective, (ii) of the receipt of any comments of from the Commission or any state securities department, when with respect to the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponStatement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (iii) of any post-effective request by the Commission for any amendment to the Registration Statement or Prospectus, any amendment or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect relating thereto, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance by the Commission of any such stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest possible moment.
(b) It will give you notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Agent in connection with the offering of the Units which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or supplement a reasonable 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 use any such prospectus to which you shall reasonably object in writing.
(c) It will deliver to you, as soon as possible available, one signed copy of the lifting or dismissal thereof. The Company has caused Registration Statement as originally filed and of each amendment thereto and one set of exhibits thereto.
(d) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time during the period when the Prospectus is required to be delivered to you copies under the Act, such number of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with (as amended or supplemented) as you may reasonably request for the sale purposes contemplated by the Act or the Regulations, and such number of copies of the Securities, the Option Securities Subscription Agreement and the Representative's Securities for such LLC Agreement as you may reasonably request.
(e) During the period as in when the opinion of your counsel and our counsel the use thereof Prospectus is required to comply be delivered pursuant to the Act, the Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in, the Units during such period in accordance with the applicable provisions herein and as set forth in the Prospectus.
(f) If any event relating to or affecting the Company shall occur as a result of which it is necessary, in your view, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Act and circumstances existing at the Rules and Regulations. The time it is delivered to a subscriber, the Company will forthwith prepare and file with the statesfurnish to you, promptly upon your requestwithout expense to you, any such a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to the Prospectusto, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriteryou) which amend or transmit supplement the Prospectus by so that as amended or supplemented it will not contain an untrue statement of a means reasonably calculated material fact or omit to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as state a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus material fact necessary in order to make the statements therein not then misleadingtherein, in the light of the circumstances existing at the time the Prospectus is required under delivered to a subscriber, not misleading. For the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other lawpurposes of this Section 3(f), the Company will forthwith prepare and furnish such information with respect to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities themselves as you may from time to time reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(bg) It will cooperate comply with all applicable registration, filing and reporting requirements of the Exchange Act.
(h) It will endeavor in good faith, in cooperation with you, to qualify the Securities Units for offering and the Option Securities and the Representative's Securities for initial sale under the applicable securities or “blue sky” laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for designate; provided, however, that purpose, provided the Company shall not be required obligated to file any general consent to service of process or to qualify to do business or to qualify as a foreign corporation or a dealer in securitiessecurities in any jurisdiction in which it is not so qualified. The It will give you notice of any correspondence received from any state securities commission regarding the Offering and will give you notice of its intention to file, or prepare for filing, any materials related to the Offering with any state securities commission; it will furnish you copies of any of the foregoing promptly upon receipt or prior to filing, as applicable, and will not file any such materials to which you shall reasonably object in writing. In each jurisdiction where the Units shall have been qualified as above provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be required by the laws of such jurisdiction.
(i) It will make generally available to continue the Company’s security holders (i.e., the holders of Units) as soon as practicable, but not later than 120 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, which need not be certified by independent public accountants unless required by the Act or the Regulations) covering the twelve-month period, or such qualification earlier period since the Company’s inception, beginning not later than the first day of the Company’s fiscal quarter following the effective date of the Registration Statement. As used in effect for this subsection, the terms “earnings statement” and “made generally available to the Company’s security holders” shall have the meanings contained in Rule 158 promulgated under the Act.
(j) It will, so long as any Units remain outstanding, furnish directly to you the Underwriter may reasonably request.following:
(ci) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, one copy of the Company’s annual report, including therein the accountants’ report, the balance sheet, the related statements of profit and loss and cash flows for the Company, together with such accountants’ comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such fiscal yearperiod, setting forth in reasonable detail its financial position, together with related statements of operationsprofit and loss and cash flows, shareholders' equitynone of which statements need be audited, and changes in cash flow but shall be certified as correct by the Company;
(iii) copies of any report, application or document which the Company shall file with the Commission; and
(iv) as soon as the same shall be sent to holders of Units, each communication which shall be sent to the holders of Units, including any other annual or interim report 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 accountantsCompany.
(dk) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectustime, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter all supplemental sales material (whether designated solely for so long as a Prospectus is required broker-dealer use or otherwise) proposed to be used or delivered under by the Act and Company in connection with the Rules and Regulations as many copies offering of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestUnits.
(el) The Company It intends to source funds and to use funds in the manner specified in the Prospectus.
(m) It will apply use the net proceeds received by it from the sale of the Securities and the Option Securities substantially Units being sold by it in the manner set forth under "Use of Proceeds" specified in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fn) As soon as it is practicable, but It will maintain adequate books and records setting forth a true and accurate account of all business transactions arising out of and in any event not later than connection with the first (lst) day conduct of the fifteenth (15th) full calendar month following Company. You or your designated representative shall have the effective date right, at any reasonable time, to have access to and inspect and copy the contents of the Registration Statement, the Company will make available to its security holders such books and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationsrecords.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the The Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent cause the issuance of Registration Statement and any such order andamendment thereof, if issuednot effective at the time and date that this Agreement is executed and delivered by the parties hereto, to obtain as soon as possible become effective. If the lifting Registration Statement has become or dismissal thereof. The Company has caused becomes effective pursuant to be delivered to you copies Rule 430A of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. , or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus that in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale Agent to continue the placement of the Securities, Placement Shares on behalf of the Option Securities and the Underwriter's Securities Company and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant provisions of Rule 430A of the Rules and Regulations with respect to rule 424(b)(1information omitted from the Registration Statement in reliance upon such Rule.
(c) or pursuant to Rule 424(b)(3) As soon as practicable, but not later than 45 days after the Commission's close end of business on the earlier of (i) the second business day first quarter ending after one year following the execution and delivery of this Agreement, and (ii) the fifth business day after the "effective date of the Registration Statement. In case " (as defined in Rule 158(c) of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(d) During such period as a prospectus is required by law to be delivered in connection with sales by a dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and Regulationsall amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(e) The Company shall cooperate with you and your counsel in order to qualify or register the Placement Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Placement Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified. The Company shall advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Placement Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(f) During the period of five years hereafter, the Company will furnish to you (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company
(g) The Company shall apply the net proceeds of the sale of the Placement Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(h) The Company shall use its best efforts to qualify or register its Shares for sale in nonissuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Shares in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof. You may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you and the several Underwriters participating in the Offering of any Series of Securities that:
(a) It In connection with the execution of each Terms Agreement, the Company will cooperate prepare a Prospectus Supplement to be filed under the Act setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in all respects the Prospectus, the price at which the Securities are to be purchased by the Underwriters from the Company or the Trust Fund, as applicable, either the initial public offering price or the method by which the price at which the Securities are to be sold will be determined, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Securities deem appropriate in making connection with the Prospectus effective and offering of the Securities, but the Company will not at any time, whether before or after the effective date, file any amendment to or supplement amendments to the Prospectus Registration Statement or any amendments or supplements to the Prospectus, unless it shall first have delivered copies of which such amendments or supplements to you, and you shall not previously have been advised and furnished with a copy or to which objected thereto promptly after receipt thereof. The Company will advise you or your counsel shall have reasonably objected or which promptly: (i) when notice is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of received from the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of that any post-effective amendment to the Registration Statement has become or Prospectuswill become effective, and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the filing offer and sale of the Securities, or of any supplement proceedings or examinations that may lead to the Prospectus such an order or any amended Prospectuscommunication, whether by or of any request made by the Commission or any authority administering any state securities department for amendment of or Blue Sky law, as soon as the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposesCompany is advised thereof, and will use its best efforts to prevent the issuance of any such order and, if issued, or communication and to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectusits lifting, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. if issued.
(b) The Company will prepare and file cause any 8-K Information (as defined in Section 8 below) with respect to each Series of Securities that are delivered by the Underwriters to the Company pursuant to Section 8 to be filed with the statesCommission on a Current Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities Exchange Act of 1934, promptly upon your requestas amended (the "Exchange Act"), on the business day immediately following the day on which such 8-K Information are delivered to counsel for the Company by any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities Underwriters prior to 10:30 a.m. (and will use its best efforts to cause the same such 8-K Information to become effective as be so filed prior to 2:00 p.m., New York time, on such business day), and will promptly as possibleadvise you when such Current Report has been so filed. The Company shall file will cause one Collateral Term Sheet (as defined in Section 9 below) with respect to an Offering of a Series that is delivered by any of the Prospectus (in form and substance satisfactory Underwriters to the Underwriter) or transmit Company in accordance with the Prospectus by a means reasonably calculated provisions of Section 9 to result in filing be filed with the Commission pursuant to rule 424(b)(1) or on a Current Report pursuant to Rule 424(b)(3) not later than 13a-11 under the Commission's close of business Exchange Act on the earlier of (i) the second business day immediately following the execution and delivery of this Agreement, and (ii) day on which such Collateral Term Sheet is delivered to counsel for the fifth business day after the effective date Company by any of the Registration Statement. Underwriters prior to 10:30 a.m. In case of the happeningaddition, if at any time within such period as a Prospectus is required under prior to the Act to be delivered in connection with the initial sale availability of the Securitiesrelated Prospectus Supplement, any of the Option Securities Underwriters has delivered to any prospective investor a subsequent Collateral Term Sheet that reflects, in the reasonable judgment of such Underwriter and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or a material change in the securities thereof, and characteristics of the Mortgage Loans for the related Series from those on which should be set forth in an amendment of or a supplement Collateral Term Sheet with respect to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply related Series previously filed with the Act, the Rules and Regulations or any other lawCommission was based, the Company will forthwith prepare and furnish cause any such Collateral Term Sheet that is delivered by such Underwriter to you copies the Company in accordance with the provisions of such amended Prospectus or of such supplement Section 9 to be attached filed with the Commission on a Current Report on the business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the Company by such Underwriter prior to 2:00 p.m. In each case, the Company will promptly advise you when such Current Report has been so filed. Notwithstanding the four preceding sentences, the Company shall have no obligation to file any materials provided by any of the Underwriters pursuant to Sections 8 and 9 which: (i) in the reasonable determination of the Company are not required to be filed pursuant to the ProspectusKidder Letters or the PSA Letter (each as defined in Sexxxxx 8 below), in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not (ii) contain erroneous information or contain any untrue statement of a material fact or or, when read in conjunction with the Prospectus and Prospectus Supplement, omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading misleading; it being understood, however, that the Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Derived Information (as defined in Section 8 below) provided by such Underwriter to the Company pursuant to Section 8 hereof. The Company shall give notice to you and such Underwriter of its determination not to file any materials pursuant to clause (i) of the preceding sentence and agrees to file such materials if such Underwriter or you reasonably object to such determination within one business day after receipt of such notice.
(c) If at any time when a prospectus relating to the Certificates is required to be delivered under the Act any event occurs as a result of which the Prospectus as then amended or supplemented would include an 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 under which they are were made. The preparation and furnishing of , not misleading, or if it is necessary at any such amendment or supplement time to amend the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act Company promptly will prepare and applicable state securities laws so as file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided, however, that the Company will not be required to permit file any such amendment or supplement with respect to any 8-K Information or Derived Information incorporated by reference in the initial offer and sales Prospectus other than any amendments or supplements of such 8-K Information or Derived Information that are furnished to the Company by the Underwriter pursuant to Section 8 hereof which are required to be filed in accordance therewith.
(d) With respect to each Series of Securities, the Option Company will make generally available to the holders of the Securities and will deliver to you, in each case as soon as practicable after being prepared, an earnings statement covering the Representatives Securities under twelve-month period beginning after the Actdate of the Terms Agreement in respect of such series of Securities, which will satisfy the Rules and Regulations, and applicable state securities lawsprovisions of Section 11(a) of the Act with respect to the Securities.
(be) It The Company will cooperate furnish to qualify you copies of the Registration Statement (two of which will be signed and will include all documents and exhibits thereto or incorporated by reference therein), each related preliminary prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you request.
(f) The Company will arrange for the qualification of the Securities for sale and the Option Securities and the Representative's Securities determination of their eligibility for initial sale investment under the securities laws of such jurisdictions as you may reasonably designate and will make continue such applications and furnish such information qualifications in effect so long as may be reasonably required for the distribution; provided, however, that purpose, provided the Company shall not be required to qualify as a foreign corporation to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or a dealer to take any action which would subject it to general or unlimited service of process in securities. The Company willany jurisdiction in which it is not, from time on the date of the related Terms Agreement, subject to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably requestservice of process.
(cg) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and any Terms Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel and accountants) incurred by them in connection with qualification of the Securities and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of memoranda relating thereto, for any fees charged by the nationally recognized statistical rating agencies for the rating of the Securities, for the filing fee of the National Association of Securities Dealers, Inc. relating to the Securities, if applicable, and for expenses incurred in distributing preliminary prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be delivered in connection with the sale of the Securities pursuant to this Agreement, the Company will file or cause to be filed, on a timely and complete basis, all documents that are required to be filed by the Company with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) So long as any the Securities of the Securitiesa Series shall be outstanding, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date annual statement of compliance delivered to the Prospectus Trustee pursuant to the Pooling and thereafter for so long as a Prospectus is required to be delivered under the Act Servicing Agreement and the Rules annual statement of a firm of independent public accountants furnished to the Trustee pursuant to the Pooling and Regulations as many copies of the Prospectus, in final form, Servicing Agreement or as thereafter amended or supplementedIndenture, as you may from time applicable, as soon as such statements are furnished to time reasonably requestthe Trustee or the Indenture Trustee, as applicable.
(ej) The Company Underwriters shall pay the following costs and expenses incident to the performance of their obligations hereunder: (i) all Blue Sky fees and expenses as well as reasonable fees and expenses of counsel in connection with state securities law qualifications and any legal investment surveys; and (ii) the reasonable fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP. Except as provided in this Section 0(x) xxd Section 10 hereof, the Underwriters will apply pay all their own costs and expenses, including, without limitation, the net proceeds from cost of printing any agreement among underwriters, the sale fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Underwriters, transfxx xxxxs ox xxsale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the CompanyUnderwriters, without and any advertising expenses connected with any offers that the prior written consent of the UnderwriterUnderwriters may make.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Gs Mortgage Securities Corp)
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Units for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) The Company will prepare and file with the SEC any required reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(j) After completion of the offering of the Units, the Company will make all filings required to maintain the quotation of the Common Stock and the Redeemable Warrants on The Nasdaq SmallCap Market, The Nasdaq National Market, or any national stock exchange.
(k) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion .
(l) For a period of six months after the proceeds shall be usedSecond Closing Date, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly, effect the Disposition of any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock, except for the sale of Units by the Company pursuant to this Agreement, the exercise of options granted under the Company's Stock Plan and other options outstanding on the date of this Agreement, and the grant of options under the Plan in the ordinary course.
(fm) As soon as For a period of six months from the Effective Date, the Company will not, without the prior written consent of the Underwriter, file a registration statement with the SEC or any state securities or "Blue Sky" law authority relating to any of the Company's Securities, whether such shares are to be offered and sold by the Company or by its shareholders, except for a Registration Statement on Form S-8 (or any successor or replacement form of registration statement) relating only to shares of Common Stock subject to options granted under the Stock Plan.
(n) The Company will not take, and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
(o) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Units by the Underwriter if it is practicablecommences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
(p) For a period of three (3) years from the Effective Date, the Underwriter shall have the right, but not the obligation, to act as (i) managing underwriter or sole or lead selling agent in any event not later than public or private offering of equity or debt securities by the first Company, and (lstii) day the Company's investment banker or financial advisor in connection with any strategic partnership, sale of the fifteenth Company or its assets, merger, acquisition of stock or assets of another entity, or any similar transaction. If the Company intends to consider or enter into any of the transactions described in this Section 3(p), it will notify the Underwriter in writing, which notification shall contain a description of such transaction in reasonable detail.
(15thq) full calendar month following For a period of three years from the Effective Date, and if the Underwriter so requests, the Company will use its best efforts to secure the election to the Company's Board of Directors of a representative selected by the Underwriter.
(r) The Company will cause the Common Stock, the Redeemable Warrants and the Units to be registered under the Exchange Act, which registrations shall be effective date concurrently with the effectiveness of the Registration Statement.
(s) Unless the Company's Common Stock and Redeemable Warrants are listed on The Nasdaq National Market or other suitable secondary trading exemptions are available, or if for any reason state Blue Sky or securities laws do not apply to secondary trading of the Common Stock and Redeemable Warrants, the Company will make available seek to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning become listed in Standard & Poors or another recognized securities manual as soon as practicable after the effective date of the Registration StatementStatement and shall pay all filing fees in connection therewith, for the purpose of facilitating secondary trading in the Common Stock and Redeemable Warrants; and the Company shall also agree to make appropriate filings to qualify the Common Stock and Redeemable Warrants for secondary trading in states in which shall satisfy such filings are necessary to cause the requirements of Section 11(a) of Common Stock and Redeemable Warrants to be qualified, provided that such qualification may be obtained without causing the Act and Rule 158(a) of the Rules and RegulationsCompany extraordinary cost or hardship.
Appears in 1 contract
Samples: Underwriting Agreement (Choicetel Communications Inc /Mn/)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It will cooperate in all respects in making : Not later than the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofClosing Date, the Company will advise you, and confirm deliver to the advice in writing, Underwriters a conformed copy of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if in the provisions of Rule 430A promulgated under form that it or the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any most recent post-effective amendment thereto became effective, certified by an officer of the Company to be in such form.The Company will prepare a final term sheet, containing solely a description of the final terms of the Bonds and the offering thereof, in a form approved by the Representatives and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule.The Company will deliver to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment Underwriters as many copies of the Prospectus (and any amendments or for supplementing of supplements thereto) and each Issuer Free Writing Prospectus as the Underwriters may reasonably request.The Company will cause the Prospectus or for additional information to be filed with respect theretothe Commission pursuant to and in compliance with Rule 424(b) (without reliance on Rule 424(b)(8) under the Securities Act) and will advise the Representatives, promptly of the issuance of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement, any Issuer Free Writing Prospectus, the Basic Prospectus or the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and therefor or pursuant to Section 8A of the Securities Act of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and, and to secure the prompt removal thereof if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for .During such period of time as the Underwriters are required by law to deliver a prospectus (including in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any circumstances where such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, requirement may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or satisfied pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required 172 under the Act to be delivered in connection with the initial sale of the SecuritiesSecurities Act) after this Underwriting Agreement has become effective, the Option Securities and the Representative's Securities of if any event relating to or affecting the Company, or of which the Company has knowledge and shall be advised by the Underwriters in writing, shall occur which materially affects in the Company, or the securities thereof, and which 's opinion should be set forth in an amendment of or a supplement or amendment to the Prospectus or the Disclosure Package in order to make the statements therein Prospectus or the Disclosure Package not then misleading, misleading in the light of the circumstances existing at the time the Prospectus when it is required delivered (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act Securities Act) to be delivereda purchaser of the Bonds, or in case it shall be necessary to the Company will amend or supplement the Prospectus to comply or the Disclosure Package by either (i) preparing and filing with the Act, Commission and furnishing to the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you Underwriters a reasonable number of copies of such amended a supplement or supplements or an amendment or amendments to the Prospectus or the Disclosure Package, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of such the Exchange Act which will supplement to be attached to or amend the ProspectusProspectus or the Disclosure Package, in such quantities as you may reasonably request, in order that the Prospectusso that, as so amended supplemented or supplementedamended, it will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances when the Prospectus (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) or the Disclosure Package is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which they are made. The preparation and furnishing case the Underwriters shall assume the expense of preparing any such amendment or supplement to supplement), the Prospectus or supplement to be attached to the Prospectus expenses of complying with this Section 6(e) shall be without expense to you. borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make generally available to its security holders and the Underwriter holders, as soon as practicable, an earnings earning statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the "effective date of the Registration Statementregistration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall satisfy be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158(a158 under the Securities Xxx.Xx any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with the offering of the Bonds, including with respect to (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture, (iii) legal counsel relating to the qualification of the Bonds under the blue sky laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (and any supplemental) blue sky survey, the Basic Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (e) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies and (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.The Company will not sell any additional first mortgage bonds without the consent of the Representatives until the earlier to occur of (i) the Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Xxxx.Xx soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be furnished to the Underwriters a supplemental opinion of counsel for the Company, addressed to the Underwriters, stating that all such recordings, registrations and filings have been made.The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act, other than the final term sheet prepared and filed pursuant to Section 6(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses identified in Parts A and B of Schedule II hereto and any electronic road show identified in Part B of Schedule II hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and Regulations433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including, if applicable, in respect of timely filing with the Commission, legending and record keeping.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, the Company will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your reasonable opinion, may be necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.and
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees ------------------------ with you thateach of the Underwriters as follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the The Company will promptly advise youyou (on behalf of the Underwriters), and confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectushas become effective, or the filing (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or Final Prospectus or for any amended Prospectusadditional information, (iii) of the initiation or threatening of any request made proceedings for, or receipt by the Company of any notice with respect to, the suspension of the qualification of the Notes for sale in any jurisdiction or the issuance by the Commission of any order suspending the effectiveness of the Registration Statement and (iv) of receipt by the Company or any state securities department representative of or attorney for amendment the Company of any other communications from the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus, the Final Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of transactions contemplated by this Agreement. The Company will make [every reasonable effort] to prevent the issuance of any a stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order post-effective amendment thereto and, if any such stop order is issued, to obtain its lifting as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file the Prospectus (in form and substance satisfactory any amendment to the UnderwriterRegistration Statement or any amendment of or supplement to the Final Prospectus before or after the Effective Date to which the Representative shall reasonably object in writing after being timely furnished in advance a copy thereof unless the Company shall conclude, upon the advice of counsel, that any such amendment must be filed at a time prior to obtaining such consent.
(b) During the period of time when a prospectus relating to the Notes is required to be delivered hereunder or transmit under the Prospectus Act or the Regulations, the Company shall comply with all requirements imposed upon it by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) Act and the TIA, as now existing or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreementhereafter amended, and (ii) by the fifth business day after Regulations, as from time to time in force, so far as may be necessary to permit the effective date continuance of sales of and dealings in the Registration StatementNotes as contemplated by the provisions thereof and the Final Prospectus. In case of the happeningIf, at any time within such period as when a Prospectus prospectus relating to the Notes is required under the Act to be delivered in connection with under the initial sale of the SecuritiesAct, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which which, in the Company has knowledge and which materially affects judgment of the Company, you or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Actyour counsel, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Final Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so then amended or supplemented, will not supplemented shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading made therein, in the light of the circumstances under which they are were made. The preparation and furnishing of , not misleading, or if it shall be necessary at any such amendment time to amend the Registration Statement or supplement the Final Prospectus to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act TIA and applicable state securities laws so the Regulations, the Company shall notify the Representative promptly and prepare and file with the Commission an appropriate post-effective amendment to the Registration Statement or supplement to the Final Prospectus that will correct such untrue statement or such omission and will use its best efforts to have any such post-effective amendment to the Registration Statement declared effective as soon as possible.
(c) The Company shall promptly deliver to permit you and counsel for the initial offer and sales Underwriters a copy of the SecuritiesRegistration Statement, the Option Securities including exhibits and the Representatives Securities under all documents incorporated by reference therein and all amendments thereto, and, so long as delivery if a prospectus may be required by the Act, as many copies of each Preliminary Prospectus, the Rules Final Prospectus, all amendments of and Regulationssupplements to such documents, and applicable state securities lawsif any, as you reasonably may request.
(bd) It will If and to the extent such qualification or registration may be necessary, the Company shall cooperate with the Underwriters and their counsel in connection with their efforts to qualify or register the Securities and the Option Securities and the Representative's Securities Notes for initial sale under the securities laws of such jurisdictions as you may designate and shall request, will make execute such applications and documents and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify such purpose and will comply with such laws so as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as may be required to complete the Underwriter may reasonably request.
(c) So long as any distribution of the SecuritiesNotes; provided, however, that the Option Securities Company shall not be -------- ------- required to qualify as a foreign corporation in any jurisdiction or the Representative's Securities remain outstanding to file a consent to service of process in the hands any jurisdiction in any action other than one arising out of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet offering or sale of the Company as at the end of Notes in such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestjurisdiction.
(e) The Company shall make generally available (within the meaning of Section 11(a) of the Act and Rule 158 of the Regulations) to its security holders and to you, in such numbers as you may reasonably request for distribution to the Underwriters, as soon as practicable but in no event later than 45 days after the end of the Company's fiscal quarter in which the first anniversary of the Effective Date occurs, an earnings statement (which need not be audited), covering a period of at least twelve consecutive full calendar months commencing after the Effective Date, that satisfies the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(f) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(g) The Company shall apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner Notes as shall be set forth under the caption "Use of Proceeds" in the Final Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Debt Securities Purchase Agreement (Hughes Electronics Corp)
Covenants of the Company. The Company covenants and agrees with you ------------------------ the several Underwriters that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after If the effective date, file any amendment to or supplement time of the Registration Statement is not prior to the Prospectus execution and delivery of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofthis Agreement, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when use its best efforts to cause the Registration Statement becomes to become effective if at the provisions of Rule 430A promulgated under earliest possible time and, upon notification from the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to Commission that the Registration Statement or Prospectushas become effective, or will so advise the filing of any supplement Representative and counsel to the Prospectus or any amended Prospectus, Underwriters promptly. The Company will advise the Representative and counsel to the Underwriters promptly of any request made the issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for purposes, or of any such notification of the suspension of qualification of the Shares for sale in any jurisdiction, or any issue regarding suspension of Nasdaq listing or the initiation or threatening of any proceedings for any of those purposes, and will use its best efforts also advise the Representative and counsel to prevent the issuance Underwriters promptly of any such order andrequest of the Commission for amendment or supplement of the Registration Statement or of the Prospectus, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectusfor additional information, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers Registration Statement (either before or after it becomes effective) or to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by including a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or prospectus filed pursuant to Rule 424(b)(3) not later than 424(b)), or file any document under the Commission's close of business on Exchange Act in the earlier of (i) the second business day following time period from the execution and delivery of this AgreementAgreement through the First Closing Date with respect to the Firm Shares, and or from the time of notice by the Representative exercising the option to purchase the Optional Shares through the Second Closing Date with respect to the Optional Shares, without first providing the Underwriters with a copy prior to such filing (iiwith a reasonable opportunity to review such amendment or supplement) or if the fifth business day after the effective date of the Registration Statement. In case of the happeningRepresentative objects to such filing.
(b) If, at any time within such period as when a Prospectus prospectus relating to the Shares is required under the Act by law to be delivered in connection with the initial sale of the Securitiessales by an Underwriter or dealer, the Option Securities and the Representative's Securities of any event occurs as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact fact, or would omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation and furnishing of , not misleading, or if it is necessary at any such amendment or time to supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act Company promptly will advise the Representative and applicable state securities laws so as counsel to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate Underwriters thereof and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, promptly prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as with the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the CompanyCommission, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages an amendment to the Registration Statement and three copies of the registration which will correct such statement including all financial statements and exhibits filed therewithor omission or an amendment which will effect such compliance; and, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire if any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Gaiam Inc)
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after If the effective date, file any amendment to or supplement time of the Registration Statement is not prior to the Prospectus execution and delivery of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofthis Agreement, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when use its best efforts to cause the Registration Statement becomes to become effective if at the provisions earliest possible time and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Representatives and counsel to the Underwriters promptly. If the effective time of the Registration Statement is prior to the execution and delivery of this Agreement and any information shall have been omitted therefrom in reliance upon Rule 430A, the Company, at the earliest possible time, will furnish the Representatives with a copy of the Prospectus to be filed by the Company with the Commission to comply with Rule 424(b) and Rule 430A promulgated under the Act and, if the Representatives do not object to the contents thereof, will be relied uponcomply with such Rules. Upon compliance with such Rules, when the Prospectus has been filed in accordance with said Rule 430A, Company will so advise the Representatives promptly. The Company will advise the Representatives and counsel to the Underwriters and the Selling Stockholder promptly of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose, or of any such purposesnotification of the suspension of qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose, and will use its best efforts also advise the Representatives and counsel to prevent the issuance Underwriters and the Selling Stockholder promptly of any such order andrequest of the Commission for amendment or supplement of the Registration Statement, if issuedof any Preliminary Prospectus or of the Prospectus, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectusfor additional information, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers Registration Statement (either before or after it becomes effective), to use the any Preliminary Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required or to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by including a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or prospectus filed pursuant to Rule 424(b)(3) not later than 424(b)), or file any document under the Commission's close of business on Exchange Act in the earlier of (i) the second business day following time period from the execution and delivery of this AgreementAgreement through the First Closing Date with respect to the Firm Shares, and or from the time of notice by the Representatives exercising the option to purchase the Optional Shares through the Second Closing Date with respect to the Optional Shares, without first providing the Underwriters with a copy prior to such filing (iiwith a reasonable opportunity to review such amendment or supplement) or if the fifth business day after the effective date of the Registration Statement. In case of the happeningRepresentatives object to such filing.
(b) If, at any time within such period as when a Prospectus prospectus relating to the Shares is required under the Act by law to be delivered in connection with the initial sale of the Securitiessales by an Underwriter or dealer, the Option Securities and the Representative's Securities of any event occurs as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact fact, or would omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation and furnishing of , not misleading, or if it is necessary at any such amendment or time to supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act Company promptly will advise the Representatives and applicable state securities laws so as counsel to permit the initial offer and sales of the Securities, the Option Securities Underwriters and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate Selling Stockholder thereof and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, promptly prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as with the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the CompanyCommission, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages an amendment to the Registration Statement and three copies of the registration which will correct such statement including all financial statements and exhibits filed therewithor omission or an amendment which will effect such compliance; and, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus if any Underwriter is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following deliver a prospectus after the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date Company, upon request of the Registration StatementRepresentatives, which shall satisfy will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.10(a)(3)
Appears in 1 contract
Samples: Underwriting Agreement (Richardson Electronics LTD/De)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective posteffective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such ProspectusPros- pectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus Pros- pectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any -11- event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three two signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the several Underwriters that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by all of the Underwriters of the distribution of the Stock contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective (the "Minimum Period"), the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Stock. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Stock for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Syscomm International Corp)
Covenants of the Company. The Company covenants and agrees with ------------------------ you that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Prospectus Registration Statement to become effective at the earliest possible time as you may designate or request, and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which advise you shall not previously have been advised and furnished with a copy or to which you or your legal counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, promptly and confirm the such advice in writing, of the receipt of any comments of the Commission or any state securities department, :
(i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, become effective;
(ii) of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose, or of any such purposesnotification of the suspension of qualification or registration of the Notes for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose; and
(iii) of any request of the Commission for amendment or supplement of the Registration Statement (either before or after it becomes effective), and the Prospectus, any Preliminary Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, and to obtain as soon as possible the lifting or dismissal thereof, if issued. The Company has caused will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus before you and your legal counsel have been furnished a copy prior to the filing, or to which you or your legal counsel shall have objected;
(b) If at any time when a prospectus relating to the Notes is required to be delivered to you copies under the Act any event occurs as a result of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use which the Prospectus and such copies as then amended or supplemented would include an 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 is necessary at any time to amend the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and or the Rules and Regulations. The , the Company will promptly advise you and your legal counsel and will promptly prepare and file with the states, promptly upon your request, any Commission an amendment or supplement which will correct such amendments statement or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary omission or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and an amendment which will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus effect such compliance;
(in form and substance satisfactory to the Underwriterc) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not Not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day sixteen months after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, Statement the Company will forthwith prepare and furnish make generally available to you copies its security holders an earnings statement (as defined in Rule 158 under the Act) covering a period of at least twelve months beginning after such amended Prospectus or of such supplement to be attached to effective date, which will satisfy the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light provisions of the circumstances under which they are made. The preparation last paragraph of Section 11(a) of the Act and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. Rule 158 promulgated thereunder;
(d) The Company will use its best efforts, when and as required by you or your legal counsel, to furnish information and otherwise cooperate in qualifying or registering the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities Notes for initial sale under the securities laws of such jurisdictions as you may designate designate, and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification qualifications or registrations in effect for so long as you may request to effect the Underwriter may reasonably request.distribution of the Notes;
(ce) So long as any of the SecuritiesNotes shall be outstanding, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and Company will furnish to the Underwriter you and your legal counsel, as soon as practicable after the end of each fiscal year, a consolidated balance sheet and consolidated statements of income and stockholders' equity of the Company as and its subsidiaries at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in cash flow of the Company for such fiscal year, all in reasonable detail and accompanied examined and certified by independent certified public accountants; and the Company will furnish to you and your legal counsel:
(i) as soon as practicable after the end of each quarterly fiscal period (except for the last quarterly fiscal period of each fiscal year), a consolidated balance sheet and consolidated statement of income of the Company and its subsidiaries for such period (which need not be audited);
(ii) as soon as available, a copy of each and any report of the certificate Company or report thereon of independent public accountants.the Bank mailed to stockholders thereof or filed with the Commission; and
(diii) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until such other information concerning the effective date of the Prospectus, as many copies of the Prospectus Company as you or your legal counsel may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event Regardless of whether or not later than the first (lst) day sale of the fifteenth Notes provided for herein is consummated, the Company will pay all expenses incident to the sale of the Notes hereunder and the performance of the obligations of the Company under this Agreement. Without limiting the generality of the foregoing, and subject only to the exceptions specifically referred to below, the expenses to be paid by the Company as aforesaid shall include such of the following as are incident to the sale of the Notes hereunder:
(15thi) full calendar month following expenses incident to the performance of the obligations of the Company under paragraphs (c) and (e) of Section 4 hereof;
(ii) the fees and expenses of the Trustee;
(iii) the printing and preparation of certificates for the Notes;
(iv) all fees and disbursements of legal counsel for the Company, of your legal counsel and of Deloitte & Touche LLP and McGladrey & Xxxxxx, LLP, limited in the case of legal fees (but not disbursements) of your counsel to $50,000;
(v) the cost of obtaining, preparing, printing, reproducing, filing and furnishing to you and your legal counsel the Registration Statement, Prospectus, Preliminary Prospectus, the Indenture and any and all amendments and supplements to all such documents, this Agreement, and any other documents required to be filed or furnished to you or your legal counsel by the Company pursuant to this Agreement;
(vi) all costs, fees and expenses, including legal counsel fees, incident to registering or qualifying the Notes under the securities or blue sky laws of the several states pursuant to Section 4(d) hereof; and
(vii) all fees payable to the National Association of Securities Dealers, Inc.
(g) There shall be delivered to you and your legal counsel on the effective date of the Registration Statement, and from time to time thereafter during such period as in the opinion of your counsel a prospectus is required by law to be delivered in connection with sales of the Notes, so many copies of the Prospectus (as supplemented or amended if the Company will make available shall have prepared any supplements or amendments thereof) as you or your legal counsel may request, and to its security holders you and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after your legal counsel, prior to the effective date of the Registration Statement, which shall satisfy the requirements such number of Section 11(a) copies of the Act Preliminary Prospectus as you or your legal counsel may request. No charge shall be made for furnishing any thereof;
(h) There shall be delivered to you and Rule 158(a) your legal counsel, without charge, two signed copies of the Rules Registration Statement, including all exhibits thereto and Regulationsof any amendments or supplements made to the Registration Statement subsequent to its effective date, and to you and your legal counsel, without charge, such reasonable number of conformed copies of the Registration Statement (excluding exhibits) and of any amendments or supplements made to the Registration Statement subsequent to its effective date as you or your legal counsel may request; and
(i) The Company will comply with, or cause to be complied with, the conditions precedent to your obligations specified in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Financial Services Corporation of the Midwest)
Covenants of the Company. The Company covenants and agrees with you that:to: ------------------------
(a) It will cooperate Notify the holders of Registrable Securities included in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, Registration Statement of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made issuance by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities such Registration Statement or the Representatives Securities for offering in any jurisdiction, or of the institution initiation of any proceedings for any such purposes, and that purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectusthereof at the earliest possible time.
(b) If the Common Stock is then listed on a national securities exchange, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same Registrable Securities to become effective as promptly as possiblebe listed on such exchange. The Company shall file If the Prospectus Common Stock is not then listed on a national securities exchange, use its best efforts to facilitate the reporting of the Registrable Securities on NASDAQ.
(in form c) Take all other reasonable actions necessary to expedite and substance satisfactory facilitate disposition of the Registrable Securities by the holders thereof pursuant to the UnderwriterRegistration Statement.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 promulgated under the Securities Act and any other rule or transmit the Prospectus by a means reasonably calculated to result in filing with regulation of the Commission that may at any time permit the Purchasers to sell securities of the Company to the public without registration, the Company, after it has become obligated to file periodic or other reports pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than Section 13 of the Commission's close of business on the earlier of 1934 Act agrees to:
(i) the second business day following the execution make and delivery of this Agreementkeep public information available, as those terms are understood and (ii) the fifth business day defined in Rule 144, at all times after 90 days after the effective date of the first Registration Statement. In case Statement filed by the Company for the offering of its securities to the general public;
(ii) file with the Commission in a timely manner all reports and other documents required of the happeningCompany under the Securities Act and the Securities and Exchange Act of 1934 (the "1934 Act"); and
(iii) furnish to each holder of Shares, so long as such holder of Shares owns any Shares, forthwith upon written request (a) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning 90 days after the effective date of the first registration statement filed by the Company), the Securities Act and the 1934 Act (at any time after it has become subject to such reporting requirements), (b) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company and (c) such other information as may be reasonably requested and as is publicly available in availing the holders of Shares of any rule or regulation of the Commission which permits the selling of any such securities without registration.
(e) Prior to the filing of the Registration StatementStatement or any amendment thereto (whether pre-effective or post-effective), and prior to the filing of any prospectus or prospectus supplement related thereto, the Company will provide each Selling Shareholder with copies of all pages thereto, if any, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.reference such Selling
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to be declared effective. If required, the Company will file the Prospectus effective and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise the Underwriter and will not at any time, whether before or after the effective dateEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus of which you the Underwriter shall not previously have been advised and furnished with a copy or to which you the Underwriter or your its counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Shares contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have been declared effective) and (B) 25 days after the date on which the Registration Statement shall have been declared effective, the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or applicable state lawsupplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Shares. As soon as the Company is advised thereof, the Company will advise youthe Underwriter, and confirm provide the advice in writingUnderwriter with copies of any written advice, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for an amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Shares for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you the Underwriter copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Shares for such period as in the opinion of your counsel to the Underwriter and our counsel the Company the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with sales by the initial sale of the SecuritiesUnderwriter or dealer, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, opinion of counsel for the Company and which counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, delivered to a purchaser of the Shares or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, law or with the Rules and Regulations or any other lawRegulations, the Company will notify the Underwriter promptly and forthwith prepare and furnish to you the Underwriter copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you the Underwriter may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or facts necessary in order to make the statements therein not misleading in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to youthe Underwriter, except that in case the Underwriter is required, in connection with the sale of the Shares to deliver a Prospectus nine months or more after the effective date of the Registration Statement, the Company will upon request of and at the expense of the Underwriter, amend or supplement the Registration Statement and Prospectus and furnish the Underwriter with reasonable quantities of prospectuses complying with Section 10(a)(3) of the Act. The Company will to the best of its ability comply with the Act, the Rules and Regulations and the Securities Exchange Act of 1934 (the "Exchange Act") and applicable state securities laws so as to permit the initial offer rules and sales regulations thereunder in connection with the offering and issuance of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsShares.
(b) It The Company will furnish such information as may be required and will otherwise cooperate and use its best efforts to qualify to register the Securities and the Option Securities and the Representative's Securities Shares for initial sale under the securities or "Blue Sky" laws of such jurisdictions as you the Underwriter may reasonably designate and will make such applications and furnish such information as may be required for that purposepurpose and to comply with such laws, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securitiessecurities or to execute a general consent of service of process in any jurisdiction in any action other than one arising out of the offering or sale of the Shares. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as the counsel to the Company and the Underwriter may deem reasonably requestnecessary, but not for a period of less than three (3) years.
(c) So long as any If the sale of the SecuritiesShares provided for herein is not consummated as a result of the Company's actions or failure to take such actions as the Underwriter believes are reasonably required to complete the transaction, the Option Securities or Company shall pay all costs and expenses incurred by it which are incident to the Representative's Securities remain outstanding in the hands performance of the publicCompany's obligations hereunder, including but not limited to, all of the expenses itemized in Section 8, including the actual accountable out-of-pocket expenses of the Underwriter which shall not exceed $75,000 (including the reasonable fees and expenses of counsel to the Underwriter). If the sale of the Shares provided herein is not consummated and the reasons therefore are reasonably related to a Material Adverse Effect on the Company, at the Company shall pay the Underwriter promptly its expenseactual out-of-pocket expenses not to exceed $75,000. In the event of the sale or merger of the Company, will annually furnish any significant subsidiaries or any significant assets thereof prior to its shareholders a report of its operations to include financial statements audited by independent public accountantsthe First Closing Date, as defined herein, and will furnish to the Closing does not occur, the Company shall pay the Underwriter as soon as practicable after the end of each fiscal year$100,000 for services provided, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantswhich expenses shall be limited to actual accountable out-of-pocket expenses.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver use its best efforts (i) to you, from time to time until cause a registration statement under the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required Exchange Act to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.declared
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatthe Subscriber:
(a) It will cooperate in to keep proper books, records and accounts of all respects in making Qualifying Expenditures and all transactions affecting the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act Commitment Amount and the Rules Qualifying Expenditures and Regulations upon reasonable notice and on a reasonable basis, to make such books, records and accounts available for inspection and review by or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, on behalf of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any post-effective amendment to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing Subscriber at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.Subscriber’s expense; and
(b) It will cooperate to qualify incur, during the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of Expenditure Period, Qualifying Expenditures in such jurisdictions amount as you may designate and will make such applications and furnish such information as may be required for that purpose, provided enables the Company shall not be required to qualify as a foreign corporation or a dealer renounce to the Subscriber, Qualifying Expenditures in securities. The Company will, from time an amount equal to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.Commitment Amount; and
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish renounce to the Underwriter as soon as practicable after the end of each fiscal yearSubscriber, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver pursuant to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(asubsection 66(12.6) of the Act and Rule 158(aeffective on or before December 31, 2006, Qualifying Expenditures incurred during the Expenditure Period in an amount equal to the Commitment Amount; and
(d) to deliver to the Subscriber within the time period required by the Act and in any event, not later than March 31, 2007, a statement setting forth the aggregate amounts of such Qualifying Expenditures renounced to the Subscriber; and
(e) that all Qualifying Expenditures renounced to the Subscriber pursuant to this Subscription Agreement will be Qualifying Expenditures incurred by the Company that, but for the renunciation to the Subscriber, the Company would be entitled to deduct in computing its income for the purposes of Part I of the Act; and
(f) that the Company will not reduce the amount to be renounced to the Subscriber hereunder and, in the event the Minister of National Revenue reduces the amount renounced to the Subscriber hereunder pursuant to subsection 66(12.73) of the Rules Act, the Company shall indemnify the Subscriber as to, and Regulationspay in full settlement thereof to the Subscriber, an amount equal to the amount of any tax payable under the Act (and under any corresponding provincial legislation) by the Subscriber (or, if the Subscriber is a partnership, by any member thereof) as a consequence of such reduction, provided that in the event that the Company has fully satisfied its obligations in respect of the indemnity in accordance with this clause, all obligations of the Company hereunder to renounce to the Subscriber any amount of the Qualifying Expenditures shall immediately thereafter cease; and
(g) that if the Company does not renounce to the Subscriber Qualifying Expenditures equal to the Commitment Amount effective on or before December 31, 2006, the Company shall indemnify the Subscriber as to, and pay in full settlement thereof to the Subscriber, an amount equal to the amount of any tax payable under the Act (and under any corresponding provincial legislation) by the Subscriber (or, if the Subscriber is a partnership, by any member thereof) as a consequence of such failure, provided that in the event that the Company has fully satisfied its obligations in respect of the indemnity in accordance with this clause, all obligations of the Company hereunder to renounce to the Subscriber any amount of the Qualifying Expenditures shall immediately thereafter cease; and
(h) that the Company will maintain its status as a Principal Business Corporation throughout the Expenditure Period; and
(i) to file all prescribed forms required under the Act necessary to renounce Qualifying Expenditures equal to the Commitment Amount to the Subscriber effective on or before December 31, 2006 and to provide the Subscriber with a copy of all such forms as are required to be provided thereto, all on a timely basis; and
(j) that the Company will not be subject to the provisions of subsection 66(12.67) of the Act in a manner which impairs its ability to renounce Qualifying Expenditures to the Subscriber in an amount equal to the Commitment Amount; and
(k) that the Company will refrain from entering into transactions or taking deductions which would otherwise reduce its cumulative CEE or cumulative CDE to an extent it would preclude renunciation of Qualifying Expenditures hereunder in an amount equal to the Commitment Amount as contemplated herein; and
(l) the Company will not knowingly renounce any of the Qualifying Expenditures to a trust, corporation or partnership with whom the Company has a prohibited relationship as defined in subsection 66(12.671) of the Act.
Appears in 1 contract
Samples: Subscription Agreement (Mogul Energy International, Inc.)
Covenants of the Company. The Company hereby covenants and agrees with you thatthe Underwriter as follows:
(a) It will cooperate in all respects in making If the Prospectus Registration Statement has not already been declared effective and will not at any time, whether before or after by the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofSEC, the Company will advise you, use its best efforts to cause the Registration Statement and confirm any post-effective amendments thereto to become effective as promptly as possible; the advice in writing, Company will notify the Underwriter promptly of the receipt of any comments of the Commission or any state securities department, time when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of or any post-effective amendment to the Registration Statement has become effective or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, has been filed and of any request made by the Commission SEC for any amendment or any state securities department for amendment supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus or for supplementing containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or for additional information advisable in connection with respect theretothe distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the CompanyRegistration Statement, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain as soon as possible its withdrawal if such a stop order should be issued.
(c) Within the lifting or dismissal thereof. The Company has caused time during which a prospectus relating to the Units is required to be delivered to you copies of such Prospectusunder the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. The Company will prepare and file with the statesIf, promptly upon your requestduring such period, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period event occurs as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in Prospectus would include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are made. The preparation and furnishing of any then existing, not misleading, or if, during such amendment period, it is necessary to amend the Registration Statement or supplement to the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement to be attached to the Prospectus shall be without (at the expense of the Company) so as to you. correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales qualification of the Securities, the Option Securities Units for offering and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you the Underwriter may designate and will make to continue such applications and furnish such information qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, however, that purpose, provided in no event shall the Company shall not be required obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as a foreign corporation or a dealer in securities. The herein provided, the Company will, from time to time, prepare will make and file such statements and reports in each year as are or may be reasonably required to continue by the laws of such qualification in effect for so long as the Underwriter may reasonably requestjurisdiction.
(ce) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as practicable after available and in such quantities as the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you Underwriter may from time to time reasonably request.
(ef) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow, and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) The Company will prepare and file with the SEC any required reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(j) After completion of the offering of the Units, the Company will make all filings required to maintain the quotation of the Common Stock and the Redeemable Warrants on The Nasdaq National Market or any national stock exchange.
(k) The Company will apply the net proceeds from the sale of the Securities and the Option Securities Units being sold by it substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus. No portion of .
(l) During the proceeds shall be usedLock-Up Period, directly or indirectly, to acquire any securities issued by the CompanyCompany will not, without the prior written consent of the Underwriter, directly or indirectly effect the Disposition of any securities including, without limitation, any securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any securities that are convertible into or exchangeable or exercisable for Common Stock, except for the sale of Units by the Company pursuant to this Agreement, the issuance and sale of Common Stock upon exercise of the Redeemable Warrants, the exercise of options granted under the Company's 1996 Stock Option Plan (the "Plan"), and the grant of options in the ordinary course under the Plan.
(fm) As soon as it is practicableThe Company will not take, but and will use its best efforts to cause each of its officers and directors not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in any event not later than the first (lst) day stabilization or manipulation of the fifteenth (15th) full calendar month following the effective date price of any security of the Registration Statement, Company to facilitate the sale or resale of the Units.
(n) The Company will make available inform the Florida Department of Banking and Finance at any time prior to its security holders and the consummation of the distribution of the Units by the Underwriter an earnings statement (which need not if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be audited) covering a period of at least twelve (12) consecutive months beginning provided within 90 days after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationscommencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Samples: Underwriting Agreement (Wilsons the Leather Experts Inc)
Covenants of the Company. The Company covenants and agrees with you the ------------------------ Underwriters that:
(a) It If the Registration Statement has not yet been declared effective the Company will cooperate in all respects in making use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus effective and will not at any time, whether before is otherwise required under Rule 424(b) or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofRule 434, the Company will advise youfile the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434. The Company will notify you promptly (and, if requested by you will confirm the advice such notice in writing, of the receipt of any comments of the Commission or any state securities department, ) (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing post-effective amendment thereto or suspending of the use initiation, or the threatening, of any Prospectus or any order suspending trading in the Common Stock proceedings therefor, (v) of the Companyreceipt of any comments from the Commission, or and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the SecuritiesShares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant be filed to Rule 424(b)(3424(b)or Rule 434) not later than that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of Statement to which the happening, Representatives shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Offered Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Representatives or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make therein, in the statements therein not misleading in light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary, in the judgment of the Underwriters or the Company, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Act or the Regulations, the Company will notify you promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Prospectus Representatives) which will correct statement or supplement omission and will use its best efforts to be attached have any amendment to the Prospectus shall be without expense to you. Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you one signed copy of the best Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of its ability comply with the ActUnderwriters such number of copies of any preliminary prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities Registration Statement, and all amendments of and supplements to such documents, if any, as the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities lawsmay reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities Offered Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Offered Shares of such jurisdictions as you the Representatives may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes be obligated in 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.
(d) It will deliver connection therewith to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long qualify as a Prospectus is required foreign corporation or to be delivered under the Act and the Rules and Regulations as many copies execute a general consent to service of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestprocess.
(e) The Company will make generally available (within the meaning of 11(a) of the Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earning statement (in form complying with the provisions of Rule 158 of the Regulations), which need not be audited, covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the Prospectus, the Company will not, without the prior written consent of Bear, Xxxxxxx & Co. Inc. (i) issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended), or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) of the Company or of any of its subsidiaries or (ii) 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 the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, provided that the foregoing shall not -------- apply to (A) the Offered Shares to be sold hereunder, (B) the issuance of the Common Stock upon conversion of the Contingent Notes on the Closing Date, (C) the issuance by the Company of shares of Common Stock upon the exercise of any option or warrant outstanding on the date hereof and disclosed in the Prospectus or (D) the issuance of any Common Stock or options to purchase Common Stock subsequent to the date hereof pursuant to the 1996 Employee Stock Option Plan, the 1999 Employee Stock Purchase Plan and the 1999 Outside Director Stock Option Plan described in the Prospectus; and the Company has obtained the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by the Representatives and listed on Schedule II attached hereto, not to engage in ----------- any of the aforementioned transactions on their own behalf, except as otherwise permitted by the terms of the "lock-up" agreements agreed to by you or your counsel.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you copies of (i) all reports to its shareholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
(h) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner Shares as set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fi) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the The Company will make available use its best efforts to its security holders and cause the Underwriter an earnings statement (which need not be audited) covering a period Shares to qualify for inclusion in the National Association of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsSecurities Dealers Automated Quotation National Market System.
Appears in 1 contract
Samples: Underwriting Agreement (Prodigy Communications Inc)
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the applicable period as a Prospectus is required under referred to in Section 10(a)(3) of the Act to be delivered in connection with the initial sale or Rule 174 of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, during which a prospectus relating to the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement Common Shares is required to be attached to delivered under the Act any event occurs, as a result of which the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such applicable state securities laws.
(b) It will cooperate to qualify period, the Securities and Company upon request, but at the Option Securities and the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands Act and Rule 174 of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, Rules and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsRegulations.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the applicable period referred to in Section 10(a)(3) of the Act and Rule 158(a) 174 of the Rules and Regulations, will furnish to you and the Selling Stockholder or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholder may request, for the purposes contemplated by the Act and the Rules and Regulations.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign
Appears in 1 contract
Covenants of the Company. The In further consideration of the agreements of the Underwriters herein contained, the Company covenants and agrees with you thateach Underwriter as follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment To furnish to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writingwithout charge, four signed copies of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the provisions Registration Statement (without exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of and any post-effective amendment supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the Prospectus, to furnish to you a copy of each such proposed amendment or the filing of supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment first date of the Prospectus or for supplementing public offering of the Prospectus or for additional information with respect thereto, of the issuance of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel for the use thereof is required to comply with Underwriters the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act by law to be delivered in connection with the initial sale of the Securitiessales by an Underwriter or dealer, the Option Securities and the Representative's Securities of any event shall occur or condition exist as a result of which the Company has knowledge and which materially affects the Company, it is necessary to amend or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleadingtherein, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.the
(bd) It will cooperate To endeavor to qualify the Securities for offer and the Option Securities and the Representative's Securities for initial sale under the securities or Blue Sky laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply To make generally available to the net proceeds from Company's security holders and to you as soon as practicable an earning statement covering the sale twelve-month period ending [September 30,] 1998 that satisfies the provisions of Section 11(a) of the Securities Act and the Option rules and regulations of the Commission thereunder.
(f) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities substantially (other than (i) the Securities and (ii) commercial paper issued in the manner set forth under "Use ordinary course of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Companybusiness), without the prior written consent of the UnderwriterMorgxx Xxxnxxx & Xo.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the ------------------------ Underwriters that:
(a) It If the Registration Statement has not yet been declared effective the Company will cooperate in all respects in making use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus effective and will not at any time, whether before is otherwise required under Rule 424(b) or after the effective date, file any amendment to or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofRule 434, the Company will advise youfile the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and confirm file a term sheet that complies with the advice in writing, requirements of the receipt of any comments of the Commission or any state securities department, Rule 434.
(i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, post- effective amendment thereto or of the suspension of the qualification of the Securitiesinitiation, the Option Securities or the Representatives Securities for offering in any jurisdictionthreatening, or of the institution of any proceedings for therefor and (v) of the receipt of any such purposescomments from the Commission. If the Commission shall propose or enter a stop order at any time, and the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or be filed pursuant to Rule 424(b)(3424(b)or Rule 434) not later than that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of the happening, Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, the Company will notify you promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Prospectus or supplement Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to be attached to you two conformed copies of the Prospectus shall be without expense to youRegistration Statement, including exhibits and all amendments thereto, and will maintain in the Company's files manually signed copies of such documents for at least five years from the date of filing. The Company will promptly deliver to each of the best Underwriters such number of its ability comply with the Actcopies of any preliminary prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsRegistration Statement, and applicable state securities lawsall amendments of and supplements to such documents, if any, as you may reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities Shares for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company be obligated in connection therewith to qualify as at the end a foreign corporation or to execute a general consent to service of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by referenceprocess. The Company will deliver to you, from time to time until the effective date promptly advise you of the Prospectus, as many copies receipt by the Company of any notification with respect to suspension of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date qualification of the Prospectus Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and thereafter for so long will use every reasonable effort to obtain the withdrawal of any order of suspension as a Prospectus is required to be delivered under the Act and the Rules and Regulations soon as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestpossible.
(e) The Company will apply make generally available (within the net proceeds from the sale meaning of Section 11(a) of the Securities Act) to its security holders and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As you as soon as it is practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first (lst) day anniversary date of the fifteenth (15th) full calendar month following the effective date of the Registration StatementStatement occurs, the Company will make available to its security holders and the Underwriter an earnings earning statement (which need not be auditedin form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement.
(f) The Company shall engage and maintain, which at its expense, a registrar and transfer agent for the Common Stock.
(g) The Company shall satisfy cause to be prepared and delivered, at its expense, within one business day from the requirements effective date of Section 11(a) this Agreement, to Bear, Xxxxxxx & Co. Inc. and Deutsche Bank Securities Inc. an "electronic Prospectus" to be used by the Underwriters in connection with the offering and sale of the Act Shares. As used herein, the term "electronic Prospectus" means a form of Prospectus, and Rule 158(a) any amendment or supplement thereto, that meets each of the Rules following conditions: (i) it shall be encoded in an electronic format, satisfactory to Bear, Xxxxxxx & Co. Inc., that may be transmitted electronically by Bear, Xxxxxxx & Co. Inc. and Regulationsthe other Underwriters to offerees and purchasers of the Shares for at least during the period when the Prospectus is required to be delivered under the Act or the Exchange Act ("the Prospectus Delivery Period"); (ii) it shall disclose the same information as the paper Prospectus and Prospectus filed pursuant to XXXXX, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to Bear, Xxxxxxx & Co. Inc., that will allow investors to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the system as a whole and for on-line time). Such electronic Prospectus may consist of a Rule 434 preliminary prospectus, together with the applicable term sheet, provided that it otherwise satisfies the format and conditions described in the immediately preceding sentence. The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to XXXXX or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the Prospectus Delivery Period, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Xoom Inc)
Covenants of the Company. The Company covenants and agrees with you the Underwriters that:
(ai) It will cooperate in all respects in making If the Prospectus Registration Statement has not yet been declared effective and will not at any time, whether before or after on the effective date, file any amendment to or supplement to the Prospectus date of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereofthis Agreement, the Company will advise youuse its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and confirm if Rule 430A is used or the advice in writing, filing of the receipt Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to the Underwriters of any comments such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify the Commission or any state securities department, Underwriters immediately (i) when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponand any amendments thereto become effective, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (ii) of any post-effective request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus, or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing any additional information, (iii) of the Prospectus mailing or the delivery to the Commission for additional information with respect theretofiling of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing post-effective amendment thereto or suspending of the use initiation, or the threatening, of any Prospectus or any order suspending trading in the Common Stock proceedings therefor, (v) of the Company, or receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the SecuritiesSecurities for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (in form and substance satisfactory including the prospectus required to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or be filed pursuant to Rule 424(b)(3424(b)or Rule 434) not later than that differs from the Commission's close prospectus on file at the time of business on the earlier effectiveness of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day Registration Statement before or after the effective date of the Registration Statement. In case of Statement to which the happening, Underwriters shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time within such period as when a Prospectus prospectus relating to the Securities is required under the Act to be delivered in connection with under the initial sale of the Securities, the Option Securities and the Representative's Securities of Act any event shall have occurred as a result of which the Company has knowledge and which materially affects Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, or the securities thereof, and which should be set forth in include an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they are were made. The preparation , not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify the Underwriters promptly and furnishing of any such prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Prospectus Company and the Underwriters) which will correct such statement or supplement omission and will use its best efforts to be attached have any amendment to the Prospectus shall be without expense to you. Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the best Underwriters two signed copies of its ability comply with the ActRegistration Statement, including exhibits and all amendments thereto, and such number of copies of any Preliminary Prospectus, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the SecuritiesProspectus, the Option Securities and the Representatives Securities under the Act, the Rules and RegulationsRegistration Statement, and applicable state securities lawsall amendments of and supplements to such documents, if any, as the Underwriters may reasonably request.
(bd) It The Company will cooperate endeavor in good faith, in cooperation with the Underwriters, at or prior to qualify the time of effectiveness of the Registration Statement, to qualify, if necessary, the Securities for offering and the Option Securities and the Representative's Securities for initial sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as you the Underwriters may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue maintain such qualification in effect for so long as required for the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding distribution thereof; except that in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of no event shall the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes be obligated in 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.
(d) It will deliver connection therewith to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long qualify as a Prospectus is required foreign corporation or to be delivered under the Act and the Rules and Regulations as many copies execute a general consent to service of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestprocess.
(e) The Company will apply make generally available (within the net proceeds from the sale meaning of Section 11(a) of the Securities Act) to its security holders and to the Option Securities substantially Underwriters as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the manner set forth under "Use of Proceeds" in the Prospectus. No portion first anniversary date of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent effective date of the UnderwriterRegistration Statement occurs, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) As soon as it is practicable, but in any event not later than the first (lst) day During a period of the fifteenth (15th) full calendar month following three years from the effective date of the Registration Statement, the Company will make available furnish to the Underwriters copies of all reports to its security holders stockholders and all reports, financial statements and proxy or information statements filed by the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after Company with the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and RegulationsCommission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you the Underwriter that:
(a) It The Company will cooperate in all respects in making use its best efforts to cause the Registration Statement to become effective as promptly as possible. If required, the Company will file the Prospectus effective or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective date, file the Prospectus, Term Sheet or any amendment to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in material compliance with the Act and the Rules and Regulations Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or applicable state lawbeen declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus which, in your reasonable opinion, may be necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission or any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430ACommission, of the effectiveness of any post-effective amendment to the Registration Statement or ProspectusStatement, or of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus Registration Statement or for supplementing of the Prospectus or for additional information with respect thereto, of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Companypreliminary prospectus, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities Units for offering in any jurisdiction, or of the institution of any proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order order, and, if issued, to obtain as soon as possible the lifting or dismissal thereof. The Company has caused to be delivered to you copies of such each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by lawthe Act. The Company authorizes you the Underwriter and the dealers to use the Prospectus and such copies of the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities Units for such period as in the opinion of your counsel and our counsel to the Underwriter the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. The Company will prepare and file with the states, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, happening at any time within such period as a Prospectus is required under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities sales by an underwriter or dealer of any event of which the Company has knowledge and which materially affects the Company or the securities of the Company, or which in the securities thereof, and which opinion of counsel for the Company or counsel for the Underwriter should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, the Rules and Regulations, and applicable state securities laws.
(b) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than the first (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement, the Company will make available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations.to
Appears in 1 contract
Covenants of the Company. The Company covenants and ------------------------ agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of the Prospectus filing or to which you reasonably object or which is not in connection compliance with the sale of the Securities, the Option Securities and the Representative's Securities for such period as in the opinion of your counsel and our counsel the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Notes and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the applicable period as a Prospectus is required under referred to in Section 10(a)(3) of the Act to be delivered in connection with the initial sale or Rule 174 of the Securities, the Option Securities and the Representative's Securities of any event of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, during which a prospectus relating to the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement Notes is required to be attached to delivered under the Act any event occurs, as a result of which the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, or if it is necessary at any time to amend the circumstances under which they are made. The preparation and furnishing of Prospectus, including any such amendment amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after the applicable state securities laws.
(b) It will cooperate to qualify time period, the Securities and Company upon request, but at the Option Securities and the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands Act and Rule 174 of the publicRules and Regulations, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsapplicable.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days (or 90 days if such quarter is the fiscal year end) after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the effective date of the Registration StatementStatement (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the applicable period referred to in Section 10(a)(3) of the Act and or Rule 158(a) 174 of the Rules and Regulations, will furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act and the Rules and Regulations.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Notes for sale under (or obtain exemptions from the application of) the Blue Sky and Canadian securities laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Notes, except that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering; sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years after the date of this Agreement, the Company will furnish to the Representatives and their counsel and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Notes are released by you for sale to the public, without your prior written consent (which consent may be withheld at your sole discretion), the Company will not, other than as disclosed in the Prospectus, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security of the Company, except, in each case, to grant options or to sell shares of Common Stock pursuant to the Company's 1996 Equity Participation Plan or the Company's Employee Stock Option Plan, each as described in the Prospectus, to grant options or to sell shares of Common Stock in connection with the offering and sale of the Common Shares or to grant options or to sell or issue shares of Common Stock in connection with the Merger Agreement.
(i) The Company will apply the net proceeds of the sale of the Notes sold by it in accordance with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) As necessary, the Company will use its best efforts to qualify or register its Notes for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California and the provincial laws of Canada as specified by the Representatives (and thereby permit market making transactions and secondary trading in the Company's Notes in California and such Canadian provinces as specified by the Representatives), will comply with such Blue Sky or Canadian provincial laws and continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a registrar (which may be the same entity as the transfer agent). You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you that:
(a) It The Company will cooperate in all respects in making use its 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. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus effective is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will not at any timefile the Prospectus, whether before or after the effective dateproperly completed, file any amendment to or supplement pursuant to the Prospectus applicable paragraph of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and Rule 424(b) of the Rules and Regulations or applicable state lawwithin the time period prescribed and will provide evidence satisfactory to you of such timely filing. As soon as the Company is advised thereof, the The Company will promptly advise you, and confirm the advice you in writing, writing (i) of the receipt of any comments of the Commission or Commission, (ii) of any state securities department, when the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A, request of the effectiveness Commission for amendment of any post-effective amendment or supplement to the Registration Statement (either before or Prospectusafter it becomes effective), or the filing of any supplement to the Preliminary Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect theretoinformation, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, Registration Statement or of the institution of any proceedings for that purpose. If the Commission shall enter any such purposesstop order at any time, and the Company will use its best efforts to prevent obtain the issuance lifting of any such order and, if issued, to obtain as soon as at the earliest possible the lifting or dismissal thereofmoment. The Company has caused to be delivered to you copies of such Prospectus, and the Company has consented and hereby consents will not file any amendment or supplement to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus and of which you have not been furnished with a copy a reasonable time prior to such copies of filing or to which you reasonably object (except to the Prospectus in connection with the sale of the Securities, the Option Securities and the Representative's Securities for such period as extent any amendment or supplement to which you object is necessary in the opinion of your counsel and our counsel to the use thereof Company to make the statements in the Registration Statement, Preliminary Prospectus or Prospectus not misleading) or which is required to comply not in compliance in all material respects with the applicable provisions of the Act and the Rules and Regulations. .
(b) The Company will prepare and file with the statesCommission, promptly upon your request, any such amendments or supplements to the Prospectus, and take any other action, as, Registration Statement or the Prospectus which in the opinion of your counsel, judgment may be necessary or advisable in connection with to enable the initial sale several Underwriters to continue the distribution of the Securities, the Option Securities and the Underwriter's Securities Common Shares and will use its best efforts to cause the same to become effective as promptly as possiblepossible (except to the extent any amendment or supplement would in the opinion of counsel to the Company make the statements in the Registration Statement or Prospectus misleading). The Company shall file the Prospectus (in form will fully and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing completely comply with the Commission pursuant to rule 424(b)(1) or pursuant to provisions of Rule 424(b)(3) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date 430A of the Rules and Regulations with respect to information omitted from the Registration Statement. In case of the happening, Statement in reliance upon such Rule.
(c) If at any time within such the nine-month period as referred to in Section 10(a)(3) of the Act during which a Prospectus prospectus relating to the Common Shares is required to be delivered under the Act to be delivered in connection with the initial sale of the Securities, the Option Securities and the Representative's Securities of any event occurs, as a result of which the Company has knowledge and which materially affects the Company, or the securities thereof, and which should be set forth in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably requestincluding any amendments or supplements, in order that the Prospectus, as so amended or supplemented, will not contain any would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which they are made. The preparation and furnishing of then existing, not misleading, or if it is necessary at any such amendment time to amend the Prospectus, including any amendments or supplement supplements, to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities under the Act, or the Rules and Regulations, the Company will promptly advise you thereof and applicable state securities laws.
(b) It will cooperate promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to qualify cause the Securities and same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such nine-month period, the Option Securities and Company upon request, but at the Representative's Securities for initial sale under the securities laws expense of such jurisdictions as you may designate Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and will make such applications and furnish such information Prospectus or Prospectuses as may be required for that purpose, provided necessary to permit compliance with the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as the Underwriter may reasonably request.
(crequirements of Section 10(a)(3) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in 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 accountantsAct.
(d) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectus, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter for so long as a Prospectus is required to be delivered under the Act and the Rules and Regulations as many copies of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities and the Option Securities substantially in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(f) As soon as it is practicable, but in any event not later than 45 days after the end of the first (lst) day of the fifteenth (15th) full calendar month quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) 12 consecutive months beginning after the effective date of the Registration Statement, Statement which shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158(aAct.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Rules Act, will furnish to you and Regulationsthe Selling Stockholders or mail to your order copies of the Registration Statement, the Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholders may reasonably request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate and Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat received by the Company of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent either of Xxxxxxxxxx Securities or of each of the Representatives (which consent may be withheld at the sole discretion of Xxxxxxxxxx Securities or the Representatives, as the case may be), the Company will not offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security; provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of stock options and warrants outstanding on the date hereof and described in the Prospectus (it being agreed that the Company shall not accelerate the exercisability of any such options or warrants) and (ii) grant options and issue shares of Common Stock in accordance with its 1994 Stock Option Plan and 1996 Non-Employee Director Stock Plan as described in the Prospectus and as they may be subsequently amended by the stockholders of the Company.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you thatas follows:
(a) It will cooperate in all respects in making the Prospectus effective and will not at any time, whether before or after the effective date, file any amendment to or supplement to the Prospectus of which notify you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected or which is not in material compliance with the Act and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will advise you, immediately and confirm the advice notice in writingwriting (i) when the Registration Statement and any amendment thereto shall have become effective, (ii) of the receipt of any comments of from the Commission or any state securities department, when with respect to the Registration Statement becomes effective if the provisions of Rule 430A promulgated under the Act will be relied uponStatement, when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness (iii) of any post-effective request by the Commission for any amendment to the Registration Statement or Prospectus, any amendment or the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission or any state securities department for amendment of the Prospectus or for supplementing of the Prospectus or for additional information with respect relating thereto, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Prospectus Registration Statement or any order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the suspension of the qualification of the Securities, the Option Securities or the Representatives Securities for offering in any jurisdiction, or of the institution of any proceedings for any such purposes, and that purpose. The Company will use its best efforts make every reasonable effort to prevent the issuance by the Commission of any such stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest possible moment.
(b) It will give you notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Agent in connection with the offering of the Units which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or supplement a reasonable 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 use any such prospectus to which you shall reasonably object in writing.
(c) It will deliver to you, as soon as possible available, one signed copy of the lifting or dismissal thereof. The Company has caused Registration Statement as originally filed and of each amendment thereto and one set of exhibits thereto.
(d) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time during the period when the Prospectus is required to be delivered to you copies under the Act, such number of such Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by law. The Company authorizes you and the dealers to use the Prospectus and such copies of the Prospectus in connection with (as amended or supplemented) as you may reasonably request for the sale purposes contemplated by the Act or the Regulations, and such number of copies of the Securities, the Option Securities Subscription Agreement and the Representative's Securities for such Operating Agreement as you may reasonably request.
(e) During the period as in when the opinion of your counsel and our counsel the use thereof Prospectus is required to be delivered pursuant to the Act, the Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in, the Units during such period in accordance with the provisions herein and as set forth in the Prospectus.
(f) It will comply with all applicable registration, filing and reporting requirements of the Exchange Act.
(g) It will endeavor in good faith, in cooperation with you, to qualify the Units for offering and sale under the applicable securities or "blue sky" laws of such jurisdictions as the Company has designated; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or to qualify to do business or to qualify as a dealer in securities in any jurisdiction in which it is not so qualified. It will give you notice of any correspondence received from any state securities commission regarding the Offering and will give you notice of its intention to file, or prepare for filing, any materials related to the Offering with any state securities commission; it will furnish you copies of any of the foregoing promptly upon receipt or prior to filing, as applicable, and will not file any such materials to which you shall reasonably object in writing. In each jurisdiction where the Units 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.
(h) It will make generally available to the Company's security holders (I.E., the holders of Units) as soon as practicable, but not later than 120 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, which need not be certified by independent public accountants unless required by the Rules and Act or the Regulations. The Company will prepare and file with ) covering the statestwelve-month period, promptly upon your requestor such earlier period since the Company's inception, any such amendments or supplements to the Prospectus, and take any other action, as, in the opinion of your counsel, may be necessary or advisable in connection with the initial sale of the Securities, the Option Securities and the Underwriter's Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)(3) beginning not later than the Commissionfirst day of the Company's close of business on the earlier of (i) the second business day fiscal quarter following the execution and delivery of this Agreement, and (ii) the fifth business day after the effective date of the Registration Statement. In case of the happening, at any time within such period as a Prospectus is required under the Act to be delivered As used in connection with the initial sale of the Securitiesthis subsection, the Option Securities terms "earnings statement" and the Representative's Securities of any event of which the Company has knowledge and which materially affects "made generally available to the Company, or 's security holders" shall have the securities thereof, and which should be set forth meanings contained in an amendment of or a supplement to the Prospectus in order to make the statements therein not then misleading, in light of the circumstances existing at the time the Prospectus is required under the Act to be delivered, or in case it shall be necessary to amend or supplement the Prospectus to comply with the Act, the Rules and Regulations or any other law, the Company will forthwith prepare and furnish to you copies of such amended Prospectus or of such supplement to be attached to the Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they are made. The preparation and furnishing of any such amendment or supplement to the Prospectus or supplement to be attached to the Prospectus shall be without expense to you. The Company will to the best of its ability comply with the Act, the Exchange Act and applicable state securities laws so as to permit the initial offer and sales of the Securities, the Option Securities and the Representatives Securities Rule 158 promulgated under the Act, the Rules and Regulations, and applicable state securities laws.
(bi) It will cooperate to qualify the Securities and the Option Securities and the Representative's Securities for initial sale under the securities laws of such jurisdictions as you may designate and will make such applications and furnish such information as may be required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or a dealer in securities. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long as any Units remain outstanding, make available to you the Underwriter may reasonably request.following:
(ci) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in the hands of the public, the Company, at its expense, will annually furnish to its shareholders a report of its operations to include financial statements audited by independent public accountants, and will furnish to the Underwriter as soon as practicable after the end of each fiscal year, one copy of the Company's annual report, including therein the accountants' report, the balance sheet, the related statements of profit and loss and cash flows for the Company, together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such fiscal yearperiod, setting forth in reasonable detail its financial position, together with related statements of operationsprofit and loss and cash flows, shareholders' equitynone of which statements need be audited, and changes in cash flow but shall be certified as correct by the Company;
(iii) copies of any report, application or document which the Company shall file with the Commission; and
(iv) as soon as the same shall be sent to holders of Units, each communication which shall be sent to the holders of Units, including any other annual or interim report 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 accountantsCompany.
(dj) It will deliver to you at or before the Initial Closing Date three signed copies of the signature pages to the Registration Statement and three copies of the registration statement including all financial statements and exhibits filed therewith, whether or not incorporated by reference. The Company will deliver to you, from time to time until the effective date of the Prospectustime, as many copies of the Prospectus as you may reasonably request. The Company will deliver to you on the effective date of the Prospectus and thereafter all supplemental sales material (whether designated solely for so long as a Prospectus is required broker-dealer use or otherwise) proposed to be used or delivered under by the Act and Company in connection with the Rules and Regulations as many copies offering of the Prospectus, in final form, or as thereafter amended or supplemented, as you may from time to time reasonably requestUnits.
(ek) The Company It intends to source funds and to use funds in the manner specified in the Prospectus.
(l) It will apply use the net proceeds received by it from the sale of the Securities and the Option Securities substantially Units being sold by it in the manner set forth under "Use of Proceeds" specified in the Prospectus. No portion of the proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company, without the prior written consent of the Underwriter.
(fm) As soon as it is practicable, but It will maintain adequate books and records setting forth a true and accurate account of all business transactions arising out of and in any event not later than connection with the first (lst) day conduct of the fifteenth (15th) full calendar month following Company. You or your designated representative shall have the effective date right, at any reasonable time, to have access to and inspect and copy the contents of the Registration Statement, the Company will make available to its security holders such books and the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which shall satisfy the requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulationsrecords.
Appears in 1 contract
Samples: Broker Dealer Agreement (Iroquois Bio Energy Co LLC)
