Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that: (i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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. (ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing) (i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof. (b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible. (c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request. (d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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. (e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement. (f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent. (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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 2 contracts
Samples: Agency Agreement (Quicksilver Resources Inc), Agency Agreement (Quicksilver Resources Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatyou as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on the date execution of this Agreement, the Company will use its best efforts prepare a Prospectus Supplement setting forth the number of Securities covered thereby and their terms not otherwise specified in the Prospectus, your name, the price at which the Securities are to cause be purchased by you from the Registration Statement and any amendments thereto to become effective as promptly as possibleCompany, and if Rule 430A is used or such other information as you and the filing Company deem appropriate in connection with the offering of the Securities; and the Company will promptly transmit copies of the Prospectus is otherwise required under Rule 424(b) or Rule 434, Supplement to the Company will file the Prospectus (properly completed if Rule 430A has been used) Commission for filing pursuant to Rule 424(b) or Rule 434 within of the prescribed time period 1933 Act Regulations and will provide evidence satisfactory furnish to you as many copies of the Prospectus (including such timely filing. If Prospectus Supplement) as you shall reasonably request.
(b) Until the Company elects to rely on Rule 434termination of the initial offering of the Securities, the Company will prepare notify you immediately, and file a term sheet that complies with confirm the requirements notice in writing, (i) of Rule 434.
the effectiveness of any amendment to the Registration Statement, (ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when of the Registration Statement and transmittal to the Commission for filing of any amendments thereto become effectivesupplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (iiiii) of the receipt of any comments from the Commission with respect to the Securities, (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement Prospectus with respect to the Securities or the Prospectusfor additional information relating thereto, and (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings therefor, (v) of the 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 Shares 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 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 the lifting of such order as soon as possible. thereof at the earliest possible moment.
(c) The Company will not give you notice of its intention to file or prepare any post-effective amendment to the Registration Statement or any amendment of or supplement (including any document to be filed pursuant to the 1934 Act prior to the termination of the initial offering of the Securities) to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use by you in connection with the offering of the Securities which differs from the prospectus on file at the Commission at the time that the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the effectiveness 1933 Act Regulations), 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 your counsel shall reasonably object.
(d) The Company will deliver to you a conformed copy of the Registration Statement before or after as originally filed and of each amendment thereto filed prior to the effective date termination of the Registration Statement initial offering of the Securities (including exhibits filed therewith or incorporated by reference therein and the documents incorporated by reference into the Prospectus pursuant to which you shall reasonably object in writing after being timely furnished in advance a copy thereofItem 12 of Form S-3).
(be) If at any The Company will furnish to you, from time to time during the period when a prospectus relating to the Shares Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act Regulations.
(f) If any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of your counsel, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Agent circumstances existing at the time it is delivered, the Company will either (i) forthwith prepare and furnish to you an amendment of or supplement to the CompanyProspectus or (ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, in form and substance reasonably satisfactory to your counsel, which will amend or supplement the Prospectus so that it will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to qualify the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale and real estate syndication laws of such states and other jurisdictions of the Shares of such jurisdictions United States as you may designate provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or trust or to file any general consent to service of process. In each jurisdiction in which the Securities have been so qualified the Company will file such statements and reports as may be required by the laws of such jurisdiction to maintain continue such qualification in effect for so long as required for the distribution thereof; except that in no event shall of the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processSecurities.
(eh) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as reasonably practicable, but not later than 45 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby, an earning statement of the Registration Statement occurs, an earnings statement Company (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a period of at least twelve consecutive months beginning after not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement. "Earning statement", "make generally available" and "effective date" will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon The Company will use the exercise, conversion or exchange net proceeds received by it from the sale of any currently outstanding stock options or warrants, (iii) the Securities in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) the manner specified in a transaction described in Rule 145(a)(2) or (3) promulgated the Prospectus under the Securities Act which is exempt from registration under the Securities Act, during the period caption "Use of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent positionProceeds" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agentall material respects.
(gj) During a period of three years from The Company will use its best efforts to effect the effective date listing of the Registration StatementSecurities on the NYSE.
(k) The Company currently intends to continue to elect to qualify as a "real estate investment trust" under the Code, and use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust".
(l) The Company will furnish timely file any document which it is required to you copies file pursuant to the 1934 Act prior to the termination of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with offering of the Commission or any national securities exchangeSecurities.
Appears in 2 contracts
Samples: Purchase Agreement (Health & Retirement Properties Trust), Purchase Agreement (Health & Retirement Properties Trust)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatRepresentatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on execution of the date of this Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement setting forth the principal amount of Senior Securities covered thereby and their terms not otherwise specified in the Senior Indenture, pursuant to cause which the Registration Statement Senior Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Senior Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, any amendments thereto to become effective as promptly as possibledelayed delivery arrangements, and if Rule 430A is used or such other information as the filing Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities. The Company will promptly transmit copies of the Prospectus to the Commission for filing pursuant to Rule 424 of the Regulations and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement and such Prospectus as the Representatives shall reasonably request.
(b) At any time when the Prospectus is otherwise required under Rule 424(b) or Rule 434by the 1933 Act to be delivered in connection with sales of the Underwritten Securities, the Company will file notify the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period Representatives immediately, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, of (i) when the effectiveness of any amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement Statement, the Prospectus or any supplement to the Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order presenting or suspending the use of the initiationany preliminary prospectus supplement, or the threatening, of any proceedings therefor, (v) of the 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 Shares Underwritten Securities for offering or sale in any jurisdiction jurisdiction, or of the initiation institution or threatening of any proceeding for that purposeany such purposes. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any stop order is issued, to obtain the lifting of such order as soon as possible. thereof at the earliest possible moment.
(c) The Company has furnished or will not file any amendment furnish to the Registration Statement or any amendment of or supplement to Representatives and counsel for the Prospectus Representatives, without charge, as many copies (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434at least one signed copy) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after the effective date Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 and Rule 412) and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(bd) If The Company will comply in all material respects with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Underwritten Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus relating to the Shares is required by the 1933 Act or the 1933 Regulations to be delivered under in connection with sales of the Securities Act Underwritten Securities, any event shall have occurred occur or condition exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and upon becoming aware of such event or condition prepare and file with the Commission an appropriate such amendment or supplement (in form and substance satisfactory supplement, whether by filing documents pursuant to you) which will the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent Prospectus comply with such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processrequirements.
(e) The Company will use its best efforts in cooperation with the Underwriter to qualify the Underwritten Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will use its best efforts in cooperation with the Underwriters to maintain such qualifications in effect for as long as may be required for the distribution of the Underwritten Securities. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities have been qualified as above provided. The Company will also supply the Representatives with such information as is necessary for the determination of the legality of the Underwritten Securities for investment under the laws of such jurisdictions as the Representatives may request.
(f) With respect to each sale of Underwritten Securities, the Company will make generally available (within the 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 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby, earning statements of the Registration Statement occurs, an earnings statement Company (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a period of at least twelve consecutive 12 months beginning after beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date date" (as defined in Rule 158) of the Registration StatementStatement relating to Underwritten Securities.
(fg) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) Underwritten Securities in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) the manner specified in a transaction described in Rule 145(a)(2) or (3) promulgated the Prospectus under the Securities Act which is exempt from registration under the Securities Actcaption "Use of Proceeds."
(h) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act in connection with the sale of 90 days from the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the date hereofof the Terms Agreement or the Closing Time with respect to the Underwritten Securities covered thereby, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sellwithout the Representatives' prior consent, offer or agree sell, or enter into any agreement to sell, grant any option for debt securities issued or guaranteed by the sale of, pledge, make Company with a maturity of more than one year in any short sale or maintain any short position, establish or maintain a "put equivalent position" public offering (within other than the meaning of Rule 16a-1(h) under the Exchange ActUnderwritten Securities), enter into any swap, derivative transaction or other arrangement that transfers including additional Senior Securities. This limitation is not applicable to another, in whole or in part, any the public offering of tax-exempt securities guaranteed by 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 foregoing without the prior written consent of the AgentCompany.
(gj) During a period of three years from At any time when the effective date Prospectus is required by the 1933 Act to be delivered in connection with sales of the Registration StatementUnderwritten Securities, the Company will give the Representatives notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement or other documents proposed to you copies be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object in writing.
(k) If the Company elects to rely upon Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i) all reports to its stockholders; 10:00 P.M. Eastern time on the date of the Terms Agreement and (ii) all reportsthe time confirmations are sent or given, financial statements and proxy or information statements filed as specified by the Company with the Commission or any national securities exchangeRule 462(b).
Appears in 2 contracts
Samples: Terms Agreement (Borg Warner Automotive Inc), Underwriting Agreement (Borg Warner Automotive Inc)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will shall notify you the Underwriters immediately (and, if requested by youthe Underwriters, will shall confirm such notice in writing)
(i) when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of or supplement to the Registration Statement or the ProspectusProspectus or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be delivered under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, initiation or the threatening, threatening of any proceedings proceeding therefor, (v) of the receipt of any comments or inquiries from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose proposes to issue or enter issues a stop order at any time, the Company will use its best efforts shall 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 Company will shall not file any post-effective amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus that the Company proposes for use by the Underwriters in connection with the offering of the Shares, which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement Securities Act Regulations) to which you the Underwriters or Underwriters' Counsel (as defined below) reasonably object, shall furnish the Underwriters 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 shall not file any such amendment or supplement or use any such prospectus to which the Underwriters or Underwriters' Counsel reasonably object in writing after being timely furnished in advance a copy thereofobject.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the reasonable judgment of the Agent Underwriters or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will shall notify you the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance reasonably satisfactory to youthe Underwriters) which that will correct such statement or omission and or will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possibleeffect such compliance.
(c) The Company will promptly deliver has delivered to you two the Underwriters five signed copies of the Registration StatementStatement as originally filed, including exhibits exhibits, and all amendments thereto, and the Company will shall promptly deliver to each of the Agent Underwriters, from time to time during the period that the Prospectus is required to be delivered under the Securities Act, such number of copies of any preliminary prospectus, the Prospectus, Prospectus and the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor shall endeavor, in good faith, faith and in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall will the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(e) The Company will shall make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriters 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 occursoccurs (or, if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), 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 StatementStatement (as defined in Rule 158(c) of the Securities Act Regulations).
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 180 days from the date hereofof the Prospectus, the Company will shall not, and will not permit any of its affiliates, directly or indirectly, to without the prior written consent of Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), issue, sell, offer or agree ------------ to sell, grant any option for the sale of, pledge, make any short sale or of, maintain any short positionposition with respect to, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act)) with respect to, 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) that transfers to another, in whole or in part, any of the economic consequences of ownership or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein of the Company or announce any intention to do capital stock of any of its subsidiaries, except that the foregoing without the prior written consent Company may issue (i) shares of Common Stock and options to purchase shares of Common Stock under its 1999 Long- Term Incentive Plan, (ii) shares of Common Stock in connection with strategic relationships and acquisitions of businesses, technologies and products complementary to those of the AgentCompany, so long as the recipients of such shares agree to be bound by a lock-up agreement, substantially in the form of Exhibit B hereto (which shall provide that any transferees and --------- assigns of such recipients will be bound by the lock-up agreement), for the remainder of such 180-day period.
(g) During a period of three years from the effective date of the Registration StatementProspectus, the Company will shall furnish to you the Underwriters copies of (i) all reports to its stockholders; stockholders and (ii) all reports, financial statements and final proxy or information statements filed by the Company with the Commission or any national securities exchange.
(h) The Company shall apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b) of the Securities Act Regulations, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., New York City time, on the date of this Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, shall file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods set forth in the Exchange Act and the rules and regulations thereunder.
Appears in 2 contracts
Samples: International Underwriting Agreement (World Wrestling Federation Entertainment Inc), u.s. Underwriting Agreement (World Wrestling Federation Entertainment Inc)
Covenants of the Company. The Company hereby covenants and agrees with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet already been declared effective on by the date of this AgreementCommission, the Company will use its best efforts to cause the Registration Statement and any post-effective 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) the Agent promptly of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information. The Company will prepare and file with the Commission, (iii) promptly upon the Agent’s reasonable request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent’s reasonable opinion may be necessary or advisable in connection with the Offering of the mailing or Notes by the delivery to Agent. In the Commission for filing of event that the Company files any amendment of or supplement to the Registration Statement or Prospectus to which the Agent shall reasonably object, the Agent will be relieved of its obligations with respect to the Offering (but not the administration) of the Notes until such time as the Company shall have filed such further amendments or supplements such that the Agent is reasonably satisfied with the Registration Statement and the Prospectus, as then amended or supplemented.
(ivb) The Company will advise the Agent, 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningStatement, of any proceedings therefor, (v) of the 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 Shares Notes for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening receipt of any specific threat of any proceeding for that any such purpose. If the Commission shall propose or enter a stop order at any time, the The Company will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain the lifting of its withdrawal if such a stop order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to should be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofissued.
(bc) If at any Within the time when during which a prospectus Prospectus relating to the Shares Notes is required to be delivered under the Securities Act Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, so far as necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions hereof and the Prospectus. If, during the longer of such period or the term of this Agreement, any event shall have occurred or change occurs that could reasonably be considered material to the Offering or that causes any of the representations and warranties of the Company contained herein to be untrue in any material respect, or as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were madethen existing, not misleading, or if if, during such period, it shall be is necessary at any time to amend the Registration Statement or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, then the Company will promptly notify you promptly and prepare and file with the Commission an appropriate amendment Agent, and, if necessary, will amend the Registration Statement or supplement the Prospectus (in form and substance satisfactory at the expense of the Company) so as to you) which will correct such statement or omission or effect such compliance. Without limiting the foregoing, if this Agreement is terminated for any reason, the Company shall promptly amend the Prospectus and will use its best efforts any related Offering materials to have any amendment delete references to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestAgent.
(d) The Company will endeavor use its best efforts to take such action as requested by the Agent in good faith, in cooperation with you, at or prior order to arrange for the time of effectiveness qualification of the Registration Statement, to qualify, if necessary, the Shares Notes for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Agent may reasonably designate (with the prior approval of the Company) and to maintain continue such qualification qualifications in effect for so long as may be required for purposes of the distribution thereof; except that Offering. In each jurisdiction in no event which the Notes shall have been qualified as herein provided, the Company will make and file such statements and reports in each year as are or may be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service reasonably required by the laws of processsuch jurisdiction.
(e) The Company will make generally available (within furnish to the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date Agent copies of the Registration Statement, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Agent may from time to time reasonably request.
(f) For such period as this Agreement may be in effect, the Company will furnish shall make available to you the Agent, as soon as the same shall be sent to its members generally, copies of all annual or quarterly reports of the Company and will, for the same period, also furnish the Agent one copy of any report, application or document (iother than exhibits, which, however, will be furnished on the Agent’s request) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national other securities exchangeexchange or market.
(g) At all times during the term of this Agreement, the Company shall provide all information reasonably requested by the Agent that relates to the Renewable Note Program in a timely manner and shall use its best efforts to insure that such information is complete and accurate.
(h) The Company will, during the term of this Agreement, furnish directly to the Agent quarterly profit and loss statements and reports of the Company’s cash flow as reported on the applicable quarterly report on Form 10-Q.
(i) The Company will apply the net proceeds from the sale of the Notes substantially in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(j) 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 could reasonably be expected to cause or result in stabilization or manipulation as defined in the Exchange Act of the price of any security of the Company to facilitate the sale or resale of the Notes.
(k) The Company hereby authorizes the Agent to conduct due diligence investigations (limited to one per calendar year following the date hereof) to verify the Company’s ability to offer and perform its obligations under the Notes during the term of this Agreement and agrees to provide the Agent with access to its relevant books and records for the purpose of performing quarterly cash flow analysis.
Appears in 2 contracts
Samples: Distribution and Management Agreement (Performance Home Buyers LLC), Distribution and Management Agreement (Performance Home Buyers LLC)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatyou as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(ii) The Company It will notify you immediately (and, if requested by you, will and confirm such the notice in writing)
writing (i) when the Registration Statement and any amendments post-effective amendment thereto shall have become effective, (ii) of the receipt of any comments from the Commission with respect to the Registration Statement or any post-effective amendment, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional informationinformation relating thereto, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 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 such order as soon as possible. The Company will not its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that 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 of the effectiveness of the Registration Statement before became or after 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 effective date of the Registration Statement 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 after being timely furnished in advance a copy thereofwriting.
(bc) If at It will deliver to you, as soon as available, one signed copy of the 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 a prospectus relating to the Shares Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request for the purposes contemplated by the Act or the Regulations, and such number of copies of the Subscription Agreement and the LLC Agreement as you may reasonably request.
(e) During the period when the 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) If any event relating to or affecting the Company shall have occurred 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 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 (in form and substance satisfactory to you) which amend or supplement the Prospectus so that as then amended or supplemented would, in the judgment of the Agent or the Company, include it will not contain an 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, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a subscriber, not misleading, or if it shall be necessary at any time to amend or supplement . For the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulationspurposes of this Section 3(f), the Company will notify you promptly and prepare and file furnish such information with the Commission an appropriate amendment or supplement (in form and substance satisfactory respect to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, themselves as you may from time to time reasonably request.
(dg) The Company It will comply with all applicable registration, filing and reporting requirements of the Exchange Act.
(h) It will endeavor in good faith, in cooperation with you, at or prior to qualify the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Units for offering and sale under the applicable securities or "blue sky" laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereofdesignate; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to qualify as a foreign corporation or to execute a file any general consent to service of processprocess 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.
(ei) The Company It will make generally available (within to the meaning of Section 11(a) of the Securities Act) to its Company's security holders and to you (i.e., the holders of Units) as soon as practicable, but not later than 45 120 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement of the Company (in form complying with the provisions of Section 11(a) of the Act and Rule 158 of promulgated thereunder, which need not be certified by independent public accountants unless required by the Securities Act or the Regulations) covering a the twelve-month period, or such earlier period since the Company's inception, beginning not later than the first day of at least twelve consecutive months beginning after 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.
(fj) Other than 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 issuance annual report, including therein the accountants' report, the balance sheet, the related statements of Common Stockprofit and loss and cash flows for the Company, (i) pursuant to any existing employee benefit plans, together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) upon as soon as practicable after the exerciseend of each fiscal quarterly period, conversion or exchange one copy of any currently outstanding stock options or warrantsa balance sheet of the Company as at the end of such period, setting forth in reasonable detail its financial position, together with related statements of profit and loss and cash flows, none of which statements need be audited, but shall be certified as correct by the Company;
(iii) in exchange for shares copies of MGV Energyany report, Inc. currently held by minority shareholders thereof, application or document which the Company shall file with the Commission; and
(iv) in a transaction described in Rule 145(a)(2) 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 (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any interim report 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 foregoing without the prior written consent of the AgentCompany.
(gk) During a period of three years It will deliver to you, from the effective date of the Registration Statementtime to time, the Company will furnish all supplemental sales material (whether designated solely for broker-dealer use or otherwise) proposed to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy be used or information statements filed delivered by the Company in connection with the Commission offering of Units.
(l) It intends to source funds and to use funds in the manner specified in the Prospectus.
(m) It will use the net proceeds received by it from the sale of the Units being sold by it in the manner specified in the Prospectus.
(n) It will maintain adequate books and records setting forth a true and accurate account of all business transactions arising out of and in connection with the conduct of the Company. You or your designated representative shall have the right, at any national securities exchangereasonable time, to have access to and inspect and copy the contents of such books and records.
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 the ------------------------ Agent thatUnderwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts endeavor 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 advise 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.
(ii) The Company will notify you immediately (promptly and, if requested by you, will confirm such notice advice in writing)
writing (i) when the Registration Statement has become effective and when any amendments amendment thereto become thereafter becomes effective, (ii) of any request by the Commission for any amendment of amendments or supplement supplements to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or the initiation or threatening contemplation of any proceeding for that purpose. If such purposes and (iv) within the Commission shall propose or enter a stop order at any timeperiod of time referred to in Section 6(e) below, of the Company will use its best efforts to prevent the issuance happening of any such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file event that makes any amendment to statement made in the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, supplemented) untrue in any material respect or that requires the making of any addition to or change in the judgment of the Agent Registration Statement or the Company, include an untrue statement of a material fact Prospectus (as then amended or omit supplemented) to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any XxXxxxxx & Company, Inc. , 2010 time the Commission shall issue any stop order suspending the 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 the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulationsany other law, the Company at its own expense (except as provided below) will notify you promptly and forthwith 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 thereto, and will use its best efforts to have any amendment furnish to the Registration Statement declared effective Underwriter and each dealer through whom Shares may be sold without charge (except as soon as possibleprovided below), a reasonable number of copies thereof.
(ce) The Company will promptly deliver to cooperate with you two signed copies and your counsel in connection with the registration or qualification of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws relating to the offering or sale of the Shares of such jurisdictions as you may reasonably designate and will file such consents to maintain service of process or other documents as may be necessary in order to effect such qualification in effect for so long as required for the distribution thereofregistration or qualification; except provided that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to execute a general consent take any action that would subject it to the service of process.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. XxXxxxxx & Company, Inc. , 2010
(ef) The Company will make generally available (within to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the meaning 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 provisions of Section 11(a) of the Securities Act) to its security holders Act and to you as soon as practicableany applicable regulation, 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 earnings statement (in form complying with the provisions of including 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a the period of three five years from the effective date of the Registration Statementhereafter, the Company will furnish to you copies of without charge (i) all reports as soon as available, a copy of each report of the Company mailed to its stockholders; shareholders or filed with the Commission and (ii) all reportsfrom 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, financial statements and proxy or information statements filed 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 Commission or any national securities exchangedesignation 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 the ------------------------ Agent thatManager:
(ia) If During any period that a prospectus relating to the Registration Statement has not yet been declared effective on Shares is required to be delivered under the date of this Agreement1933 Act, the Company Company, subject to Section 5(b), will 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 comply with the requirements of Rule 434.
(ii) The Company 415, Rule 430C and Rule 497 under the 1933 Act and will notify you immediately (andthe Manager immediately, if requested by you, will and confirm such the notice in writing)
, (i) when any post-effective amendment to the Registration Statement and any amendments thereto shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any prospectus, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for that purpose. If the Commission shall propose or enter a stop order at any time, the 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 possiblepurposes. The Company will not file any amendment to promptly effect the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed filings necessary pursuant to Rule 424(b)or 497 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 434) 497 was received for filing by the Commission and, in the event that differs from the prospectus on it was not, it will promptly file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at such prospectus. During any time when period that a prospectus relating to the Shares is required to be delivered under the Securities 1933 Act, the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company shall notify the Manager promptly of the time on or after the date of this Agreement when any amendment to the Registration Statement has been filed or becomes effective or when the Basic Prospectus or the Prospectus or any supplement to any of the foregoing has been filed; and the Company shall cause the Basic Prospectus, the Prospectus Supplement and the Prospectus and each amendment or supplement to the Basic Prospectus, the Prospectus Supplement or the Prospectus to be filed with the Commission as required pursuant to Rule 497 under the 1933 Act within the time period prescribed.
(c) Upon the Manager’s written request, the Company will deliver to the Manager, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Manager’s request, will also deliver to the Manager, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits). The copies of the Registration Statement and each amendment thereto furnished to the Manager will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company shall make available to the Manager, as soon as practicable after this Agreement becomes effective, and thereafter from time to time shall furnish to the Manager, as many copies of the Prospectus (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 Manager may reasonably request for the purposes contemplated by the 1933 Act; in case the Manager is required to deliver (whether physically, deemed to be delivered pursuant to Rule 153 or any similar rule), in connection with the sale of the Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the 1933 Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the 1933 Act, the Company will prepare, at its expense, 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 1933 Act or Item 512(a) of Regulation S-K under the 1933 Act, as the case may be.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the distribution of the Shares as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Shares, any event shall have occurred occur or condition shall exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Manager or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an any untrue statement statements 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, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities Act or requirements of the Securities Act Regulations1933 Act, the Company will notify you promptly and prepare and file with the Commission an appropriate Commission, subject to Section 5(b), such amendment or supplement (in form and substance satisfactory as may be necessary to you) which will correct such statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of or the Registration Statement, including exhibits and all amendments theretoProspectus comply with such requirements, and the Company will promptly deliver furnish to each of the Agent Manager such number of copies of any preliminary prospectus, such amendment or supplement as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Manager may reasonably request.
(df) The Company will endeavor in good faithuse its commercially reasonable efforts, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementManager, to qualify, if necessary, qualify the Shares for offering and sale under the applicable securities laws relating to the offering or sale of the Shares of such states and other jurisdictions (domestic or foreign) as you the Manager may designate and to maintain such qualification qualifications in effect for so as long as required for the distribution thereofManager reasonably requests; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to execute a general consent subject itself to service taxation in respect of processdoing business in any jurisdiction in which it is not otherwise so subject.
(eg) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available (within to its securityholders as soon as reasonably practicable an earnings statement for the meaning purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities 1933 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 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.
(fh) Other than The Company will use the Company's issuance Net Proceeds received by it from the sale of Common Stock, the Shares in the manner specified in the Prospectus under “Use of Proceeds”.
(i) pursuant The Company will use its commercially reasonable efforts to effect and maintain the listing of the Common Stock on the NASDAQ.
(j) At any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, time during the period pendency of 90 days from the date hereofa Placement Notice, the Company will notshall not sell, and will not permit offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of its affiliatesor agree to dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning shares of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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, into or exchangeable or exercisable for Common Stock (including without limitation, any options, warrants or exchangeable for other rights to purchase Common Stock), in each case without giving the Manager at least [·] Trading Days’ prior written notice specifying the nature of the proposed sale and the date of such proposed sale. The foregoing sentence shall not apply to (i) the Shares to be offered and sold to the Manager or any interest therein Alternative Manager pursuant to this Agreement or announce any intention Terms Agreement, Alternative Equity Distribution Agreement or Alternative Terms Agreement, as applicable, (ii) the issuance of any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to do in the Prospectus, (iii) any shares of Common Stock issued or options to purchase shares of Common Stock granted pursuant to existing dividend reinvestment plans or employee benefit plans of the foregoing without Company referred to in the prior written consent Prospectus, and any registration related thereto, (iv) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan, and any registration related thereto, (v) any shares of Common Stock issued to directors in lieu of directors’ fees, and any registration related thereto or (vi) the Agentissuance by the Company of any shares of Common Stock as consideration for any strategic acquisitions. In the event that notice of a proposed sale is provided by the Company pursuant to this subsection (j), the Manager will suspend activity under this Agreement for such period of time as requested by the Company or as may be deemed appropriate by the Manager.
(gk) The Company, during the term of this Agreement, will use its commercially reasonable efforts to maintain its status as a business development company; provided, however, the Company may cease to be, or withdraw its election as, a business development company, with the approval of the board of directors and a vote of stockholders as required by Section 58 of the 1940 Act or any successor provision.
(l) During a period the term of three years from the effective date of the Registration Statementthis Agreement, the Company will furnish use its commercially reasonable efforts to you copies qualify and elect to be treated as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (ithe “Code”), and to maintain such qualification and election in effect for each full fiscal year during which it is a business development company under the 0000 Xxx.
(m) all reports The Company will use its commercially reasonable efforts to its stockholdersmaintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (iiB) all reportsany significant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial statements data, and proxy any fraud whether or information statements filed by not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company with Company’s independent auditors and the Commission or any national securities exchangeaudit committee of the Company’s board of directors.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Ares Capital Corp), Equity Distribution Agreement (Ares Capital Corp)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 the Underwriters 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.
(ii) The Company will notify you the Underwriters immediately (and, if requested by you, will confirm such notice in writing)
(iA) when the Registration Statement and any amendments thereto become effective, (iiB) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iiiC) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (vE) of the receipt of any comments from the Commission and (viF) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you the Underwriters shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent Underwriters or the Company, 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, in the light of the circumstances under which they were made, 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 the Underwriters, promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Company and the Underwriters) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you the Underwriters two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectusPreliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with youthe Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriters 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 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you the Underwriters copies of (i) all reports to its stockholders; stockholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
(g) The Company will apply the net proceeds of the sale of the Shares in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(h) The Company will use its best efforts to effect and maintain for a period of three years after the date of this Agreement the listing of the Shares on the American Stock Exchange or other national securities exchange and will comply with all listing standards, listing agreements and rules and regulations of, including the filing of all documents and notices required by the American Stock Exchange or such other national securities exchange.
(i) The Company will refrain, during a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or other arrangement that transfers all or a portion of the economic consequence of ownership of the Common Stock or other securities (regardless of whether any of the transactions described in clause (i) or (ii) above is to be settled by the delivery of Common Stock or such other securities, in cash or otherwise). The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) options granted under stock option plans approved by the Company’s Board of Directors, (C) securities of the Company sold in a subsequent transaction in which I-Bankers Securities participates in the placement of such securities, or (D) any shares of Common Stock issued by the Company upon the exercise of an option or other convertible security outstanding on the date hereof and referred to in the Prospectus.
(j) The Company will not itself and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future 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 any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Uqm Technologies Inc), Underwriting Agreement (Uqm Technologies Inc)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall 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 practicable 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 not at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Exchange Act (i) before termination of the offering of the Securities by the Underwriters, which the Underwriters shall not previously have been advised and furnished with a copy, or (ii) to which you the Underwriters shall reasonably object have objected or (iii) which is not in writing after being timely furnished in advance a copy thereofcompliance with the Act, the Exchange Act or the Rules and Regulations.
(bc) If The Company shall file the Prospectus (in form and substance satisfactory to the Underwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Underwriters pursuant to Rule 424(b)(4)) 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.
(d) The Company will give the Underwriters 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 Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), will furnish the Underwriters 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 prospectus to which the Underwriters or Johnxxx & Montxxxxxx ("Xnderwriters' Counsel") shall reasonably object.
(e) The Company shall cooperate in good faith with the Underwriters, and Underwriters' Counsel, at or prior to the time the Registration Statement becomes effective, in endeavoring to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Underwriters may reasonably designate, and shall cooperate with the Underwriters and Underwriters' Counsel in the making of such applications, and filing such documents and shall furnish such information as may be required for such purpose; provided, however, the Company shall not be required to: (i) qualify as a foreign corporation or file a general
(f) During the time when a prospectus relating to the Shares Prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by 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 Securities Act in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when the Prospectus relating to the Securities is required to be delivered under the Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be reasonably satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such Underwriters a reasonable number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestamendment or supplement.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period commencing on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters, an earnings statement (which will be in such form complying with and detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Rules and Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(gh) During a period of three five (5) years from after the effective date hereof and provided that the Company is required to file reports with the Commission under Section 12 of the Registration StatementExchange Act, the Company will provide the Representative's director Designee or Attendee, as defined herein, copies of the below described documents prior to release where applicable and will furnish to you copies of its stockholders and to the Underwriter as soon as practicable, annual reports (i) all reports to its stockholders; and (ii) all reports, including financial statements and proxy or information statements filed audited by the Company with the Commission or any national securities exchange.independent public accountants):
Appears in 2 contracts
Samples: Underwriting Agreement (Karts International Inc), Underwriting Agreement (Karts International Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent several Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when advise the Registration Statement and any amendments thereto become effective, (ii) Representatives promptly of any request by the Commission for any amendment of proposal to amend or supplement to the Registration Statement or the Prospectus and prior to the completion of the distribution of the Offered Debt Securities provide the Representatives with a reasonable opportunity to review such proposed amendment or for supplement prior to any additional informationfiling thereof (other than any filing required to be made pursuant to the Exchange Act) and will not make any such amendment or supplement between the date hereof and the Closing Date which shall be reasonably disapproved by the Representatives promptly after reasonable notice thereof; prior to the completion of the distribution of the Offered Debt Securities, (iiithe Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the mailing or Exchange Act, advise the delivery to Representatives, promptly after it receives notice thereof, of the Commission for filing of time when any amendment of or supplement to the Registration Statement has been filed or becomes effective or any supplement to the ProspectusProspectus or any amended Prospectus has been filed with, or transmitted for filing to, the Commission (iv) other than any filing required to be made pursuant to the Exchange Act ), of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any prospectus relating to the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningOffered Debt Securities, of any proceedings therefor, (v) of the 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 Shares Offered Debt Securities for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amendment or enter a stop order at any timesupplement of the Registration Statement or Prospectus or for additional information; and, in the Company will use its best efforts to prevent event of the issuance of any such stop order andor of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, if issued, will use promptly its best efforts to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.its withdrawal;
(b) If at any time when a prospectus relating to the Shares any Offered Debt Securities is required to be delivered under the Securities Act any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement or Prospectus to comply with the Securities Act or the Securities Act RegulationsTrust Indenture Act, the Company promptly will notify you promptly and prepare and file cause to be filed promptly with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission and will use its best efforts to have any or effect such compliance. The expense of complying with the requirements of this Section 5(b) shall be borne
(i) during the period of six months after the first date of the public offering of the Offered Debt Securities by the Company, and
(ii) after the expiration of such six-month period, by those Underwriters on whose behalf the Representatives may request copies of the Prospectus or of an amendment or amendments of or a supplement or supplements to the Registration Statement declared effective as soon as possibleProspectus.
(c) The Company will promptly deliver timely file such reports pursuant to you two signed copies the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement or statements of the Registration Statement, including exhibits Company and all amendments theretoits subsidiaries (which need not be audited) for the purposes of, and to provide the Company will promptly deliver to each benefits contemplated by, the last paragraph of Section 11(a) of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestSecurities Act.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior furnish to the time of effectiveness Representatives copies of the Registration StatementStatement (one of which will include all exhibits), to qualify, if necessaryeach related preliminary prospectus, the Shares Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request.
(e) The Company will arrange for the qualification of the Offered Debt Securities for offering and sale and the determination of their eligibility for investment under the applicable securities and insurance laws relating to the offering or sale of the Shares of such jurisdictions as you may the Representatives reasonably designate and to maintain will continue such qualification qualifications in effect for so long as required for the distribution thereofdistribution; except provided, however, that in no event shall the Company be obligated in connection therewith the Company shall not be required to qualify as a foreign corporation or to execute file a general consent to service of process.
(e) The Company will make generally available (within the 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 end of its fiscal quarter process 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statementany jurisdiction.
(f) Other than The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's issuance counsel and accountants in connection with the registration of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated Offered Debt Securities under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing, word processing or reproducing this Agreement, the Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Offered Debt Securities;
(iii) all expenses in connection with the qualification of the Offered Debt Securities for offering and sale under state securities or insurance laws as provided in Section 5(e) hereof, including fees and disbursements of the Representatives' counsel in connection with such qualification and in connection with any Blue Sky and Legal Investment Memoranda;
(iv) any fees charged by securities rating services for rating the Offered Debt Securities;
(v) any filing fees incident to any required review by the Corporate Financing Department of NASD Regulation, Inc. (NASDR) of the terms of the sale of the Offered Debt Securities;
(vi) the cost of preparing the Offered Debt Securities, including any fees and expenses relating to the use of book-entry securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with the Indenture and the Offered Debt Securities; and
(viii) all other costs and expenses incident to the performance of its obligations hereunder and under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Section. It is exempt from registration under understood, however, that, except as provided in this Section, Section 7 and Section 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Debt Securities Actby them, during and any advertising expenses connected with any offers they may make.
(g) During the period of 90 days from beginning on the date hereofhereof and continuing to and including the earlier of (i) the termination of the trading restrictions for the Offered Debt Securities, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the AgentRepresentatives, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company that mature more than nine (9) months after the Closing Date and that are substantially similar to the Offered Debt Securities. The foregoing restriction shall not apply to an issue of debt securities denominated in a currency other than U.S. dollars or to an issue of debt securities at least 90% of which is offered and sold outside the United States.
(gh) During a period of three years from The Company will advise the effective date Representatives in writing not later than 3:30 p.m., New York City time, on the second Business Day prior to the Closing Date of the Registration Statementnames of any investors with which the making of Delayed Delivery Contracts has been approved by the Company and the principal amount of any Contract Offered Debt Securities to be covered by each such Delayed Delivery Contract.
(i) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company will furnish to you copies of (ishall file a Rule 462(b) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or any national securities exchangegive irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
Appears in 2 contracts
Samples: Underwriting Agreement (American General Finance Corp), Underwriting Agreement (American General Finance Corp)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 To prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriters and to file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Act not later than Commission’s close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this Agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested by youapplicable, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request earlier time as may be required by the rules and regulations of the Commission for under the Act, to make no further amendment or any amendment of or supplement to the Registration Statement Statement, the Pricing Prospectus or Prospectus which shall be reasonably disapproved by Canaccord Xxxxx Inc. promptly giving reasonable notice thereof; to advise Canaccord Xxxxx Inc., promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Pricing Prospectus or the Prospectus or for any additional informationamended Pricing Prospectus or Prospectus has been filed and to furnish Canaccord Xxxxx Inc. copies thereof; to advise Canaccord Xxxxx Inc., (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectuspromptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any Issuer Free Writing Prospectus, Preliminary Prospectus or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement, the Pricing Prospectus or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Issuer Free Writing Prospectus, the Company will Preliminary Prospectus or Prospectus or suspending any such qualification, to use promptly 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. its withdrawal;
(b) The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus promptly all material required to be filed by the Company with the Commission pursuant to Rule 424(b)or 433(d) under the Act;
(c) Promptly, from time to time, to take such action as Canaccord Xxxxx Inc. may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as Canaccord Xxxxx Inc. may request and to comply with such laws so as to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(d) To furnish the Underwriters with copies of each Issuer Free Writing Prospectus, any Preliminary Prospectus and the Prospectus in such quantities as the Underwriters may from time to time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 434173(a) that differs from under the prospectus on file Act) is required at any time prior to the expiration of nine months after the time of the effectiveness issuance of the Registration Statement before Prospectus in connection with the offering or after the effective date sale of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Shares and if at such time any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event events shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or or, if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement in order to comply with the Securities Act or the Securities Act RegulationsAct, the Company will to notify you promptly Canaccord Xxxxx Inc. and upon Canaccord Xxxxx Inc.’s request to prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many copies as the Commission Underwriters may from time to time reasonably request of an appropriate amendment amended Prospectus or a supplement (in form and substance satisfactory to you) the Prospectus which will correct such statement or omission or effect such compliance, and will use its best efforts in case any Underwriter is required by law to have deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any amendment of the Shares at any time nine months or more after the time of issue of the Prospectus, upon the Underwriters request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Underwriters may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(e) To timely file such reports pursuant to the Registration Statement declared effective Exchange Act as are necessary in order to make generally available to its stockholders as soon as possible.practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Act;
(cf) The Company will promptly deliver During the period beginning from the date hereof and continuing to you two signed copies and including the date 90 days after the date of the Registration StatementProspectus (the “Lock-Up Period”), including exhibits and all amendments theretonot to offer, and sell, contract to sell or otherwise dispose of any securities of the Company will promptly deliver which are substantially similar to each the Shares, without the prior written consent of Canaccord Xxxxx Inc. other than the sale of the Agent such number Shares to be sold by the Company hereunder;
(g) During the Lock-Up Period, not to, without the prior written consent of copies the Canaccord Xxxxx Inc., file any registration statement, or any amendment or supplement to any registration statement, under the Securities Act which registers, or offers for sale, Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, except for a registration statement on Form S-8 relating to employee benefit plans; provided however, that notwithstanding the foregoing, after 40 days after the date of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments Company may file a registration statement on Form F-3 registering the resale of and supplements to such documents, if any, as you may reasonably request.Ordinary Shares held by the Selling Stockholder;
(dh) The Company will endeavor in good faith, in cooperation with you, at or prior Not to grant options to purchase Ordinary Shares which would become exercisable during a period beginning from the time of effectiveness date hereof and continuing to and including the date 90 days after the date of the Registration StatementProspectus;
(i) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, to qualify, if necessary, the Shares for offering stockholders’ equity and sale under the securities laws relating to the offering or sale cash flow of the Shares of such jurisdictions as you may designate Company and its consolidated subsidiaries certified by independent public accountants) and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(aRule 158(b) of under the Securities Act) to its security holders and to you as soon as practicable, but not later than 45 days practicable after the end of its each of the first three quarters of each fiscal year (beginning with the 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 Act Regulations) covering a period of at least twelve consecutive months beginning ending after the effective date of the Registration Statement.), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(gj) During a period of three five years from the effective date of the Registration Statement, the Company will to furnish to you the Underwriters upon request copies of (i) all reports or other communications (financial or other) furnished to its stockholders; stockholders generally, and (ii) all reportsdeliver to the Underwriters as soon as they are available, copies of any reports and financial statements and proxy furnished to or information statements filed by the Company with the Commission Commission, the Nasdaq National Market or any national securities exchange.exchange on which any class of securities of the Company is listed (such financial statements to be on a combined or consolidated basis to the extent the accounts of the Company and its subsidiaries are combined or consolidated in reports furnished to its stockholders generally or to the Commission);
(k) Not to accelerate the vesting of any option issued under any stock option plan such that any such option may be exercised within 90 days from the date of the Prospectus;
(l) To give prompt notice to Canaccord Xxxxx Inc. if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, and, if requested by Canaccord Xxxxx Inc., to prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; and
Appears in 2 contracts
Samples: Underwriting Agreement (Telvent Git S A), Underwriting Agreement (Telvent Git S A)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriters that:
(ia) If The Company shall not prepare, use, authorize, approve, refer to or file any Issuer Free Writing Prospectus or any amendment to the Registration Statement Statement, any supplement to the Base Prospectus relating to or affecting the Underwritten Certificates, unless the Company has furnished a copy of such Issuer Free Writing Prospectus, amendment or supplement to you for your review prior to filing, and will not yet been declared effective on prepare, use, file, authorize, approve, refer to or file any such Issuer Free Writing Prospectus and not file any such proposed amendment or supplement to which you reasonably object. Subject to the date of this Agreementforegoing sentence, the Company will use its best efforts to shall cause the Registration Statement and any amendments thereto Prospectus Supplement to become effective as promptly as possible, and if Rule 430A is used or be transmitted to the Commission for 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) 424 under the 1933 Act or shall cause the Prospectus Supplement and any Issuer Free Writing Prospectus, to the extent required by Rule 434 within 433 of the prescribed time period and will provide evidence satisfactory 1933 Act 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 be filed with the requirements of Commission pursuant to said Rule 434.
(ii) 424. The Company will notify promptly shall advise you immediately (and, if requested by you, will confirm such notice in writing)
or counsel for the Underwriters (i) when the Prospectus Supplement shall have been filed or transmitted to the Commission for filing pursuant to Rule 424, (ii) when any amendment to the Registration Statement and any amendments thereto shall have become effective, (iiiii) of any request by the Commission for any amendment of or supplement to amend the Registration Statement or supplement the Prospectus Supplement or for any additional information, (iii) information in respect of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectusoffering contemplated hereby, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto which shall have become effective on or of prior to the initiation, Closing Date or the threatening, institution or threatening of any proceedings thereforproceeding for that purpose, and (v) of the 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 Shares Underwritten Certificates for sale in any jurisdiction or the initiation institution or threatening of any proceeding for that purpose. If the Commission The Company shall propose or enter a stop order at any time, the Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(b) If If, at any time when a prospectus the Prospectus relating to the Shares Underwritten Certificates is required to be delivered under the Securities Act 1933 Act, any event shall have occurred occurs as a result of which the Prospectus Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, 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 1933 Act or the Securities Act Regulationsrules and regulations thereunder, the Company promptly will notify you promptly and prepare and file with the Commission Commission, at the expense of the Company, subject to paragraph (a) of this Section 5, an appropriate amendment or supplement (in form and substance satisfactory to you) which that will correct such statement or omission and or an amendment that will effect such compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, the Company will use its best efforts to have any cause such amendment to the Registration Statement declared to be made effective as soon as possible.
(c) The Company will promptly deliver furnish to you two and to counsel for the Underwriters, without charge, signed copies of the Registration Statement, Statement (including exhibits thereto) and all amendments theretoeach amendment thereto which shall become effective on or prior to the Closing Date, and the Company will promptly deliver and, upon request, to each other Underwriter a copy of the Agent Registration Statement (without exhibits thereto) and each such number amendment and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act, as many copies of the Transaction FWP, any preliminary prospectus, the Issuer Free Writing Prospectus, the Registration Statement, Prospectus Supplement and all the Base Prospectus and any amendments of and supplements to such documents, if any, thereto as you may reasonably request.
(d) The Company will endeavor in good faithfurnish such information, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualifyexecute such instruments and take such action, if necessaryany, as may be required to qualify the Shares Underwritten Certificates for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to will maintain such qualification qualifications in effect for so long as required for the distribution thereof; except that in no event shall of the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processUnderwritten Certificates.
(e) The Company will make generally available (within pay, or cause to be paid, all costs and expenses in connection with the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicabletransactions herein contemplated, including, but not later than 45 days after limited to, the end fees and disbursements of its fiscal quarter counsel; the costs and expenses of printing (or otherwise reproducing) and delivering the Pooling and Servicing Agreement and the Underwritten Certificates; the fees and disbursements of accountants for the Company; the reasonable out-of-pocket costs and expenses in which connection with the first anniversary date qualification or exemption of the effective date Underwritten Certificates under state securities or "Blue Sky" laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith, in connection with the preparation of any "Blue Sky" survey and in connection with any determination of the eligibility of the Underwritten Certificates for investment by institutional investors and the preparation of any legal investment survey; the expenses of printing any such "Blue Sky" survey and legal investment survey; the costs and expenses in connection with the preparation, printing and filing of the Registration Statement occurs(including exhibits thereto), an earnings statement (the Base Prospectus, the Transaction FWP, if any, any Issuer Free Writing Prospectus, if any, and the Prospectus Supplement, the preparation and printing of this Agreement and the delivery to the Underwriters of such copies of the Base Prospectus and each Transaction FWP, if any, and Prospectus Supplement as you may reasonably request; the fees of the Rating Agencies that are rating the Underwritten Certificates; and the reasonable fees and disbursements of counsel to the Underwriters. Except as provided above or in form complying Section 7, the Underwriters shall be responsible for paying all other costs and expenses incurred by them in connection with the provisions of Rule 158 purchase and sale of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration StatementUnderwritten Certificates.
(f) Other than To the Company's issuance of Common Stock, (i) pursuant extent that the Pooling and Servicing Agreement provides that the Underwriters are to receive any existing employee benefit plans, (ii) upon the exercise, conversion notices or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereofreports, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofhave any other rights thereunder, the Company will not, enforce the rights of the Underwriters under the Pooling and Servicing Agreement and will not permit consent to any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any amendment of the economic consequences of ownership Pooling and Servicing Agreement that would adversely affect such rights 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 foregoing without the prior written consent of the AgentUnderwriters.
(g) During a period of three years from The Company shall, as to itself, and the effective date Company, or pursuant to the Pooling and Servicing Agreement, the Trustee, will be required to, as to the Trust Fund, satisfy and comply with all reporting requirements of the Registration Statement1934 Act, and the rules and regulations thereunder. The Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company also file with the Commission all Underwriter Free Writing Prospectus (as defined herein) provided to the Company by an Underwriter and identified by it as such within the time period allotted for such filing pursuant to the Rule 433 of the 1933 Act; provided, however, that prior to such filing of any Free Writing Prospectus by the Company, each Underwriter must comply with its obligations pursuant to Section 4(c). The Company shall file any corrected Free Writing Prospectus described in Section 4(m) as soon as practicable following receipt thereof.
(h) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus or any national securities exchangematerials used in a Road Show (as defined in Rule 433 of the 1933 Act) that is not filed with the Commission in accordance with Rule 000 xxxer the Securities Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Banc of America Commercial Mortgage Inc., Series 2008-1), Underwriting Agreement (Banc of America Commercial Mortgage Inc., Series 2008-Ls1)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 To prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriters and to file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Act not later than Commission’s close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this Agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested by youapplicable, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request earlier time as may be required by the rules and regulations of the Commission for any under the Act, to make no further amendment of or supplement to the Registration Statement Statement, the Pricing Prospectus or Prospectus to Canaccord Xxxxx Inc. shall have reasonably and promptly objected; to advise Canaccord Xxxxx Inc., promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Pricing Prospectus or the Prospectus or for any additional informationamended Pricing Prospectus or Prospectus has been filed and to furnish Canaccord Xxxxx Inc. copies thereof; to advise Canaccord Xxxxx Inc., (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectuspromptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any Issuer Free Writing Prospectus, Preliminary Prospectus or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement, the Pricing Prospectus or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Issuer Free Writing Prospectus, the Company will Preliminary Prospectus or Prospectus or suspending any such qualification, to use promptly 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. its withdrawal;
(b) The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus promptly all material required to be filed by the Company with the Commission pursuant to Rule 424(b)or 433(d) under the Act;
(c) Promptly, from time to time, to take such action as Canaccord Xxxxx Inc. may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as Canaccord Xxxxx Inc. may request and to comply with such laws so as to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(d) To furnish the Underwriters with copies of each Issuer Free Writing Prospectus, any Preliminary Prospectus and the Prospectus in such quantities as the Underwriters may from time to time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 434173(a) that differs from under the prospectus on file Act) is required at any time prior to the expiration of nine months after the time of the effectiveness issuance of the Registration Statement before Prospectus in connection with the offering or after the effective date sale of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Shares and if at such time any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event events shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or or, if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement in order to comply with the Securities Act or the Securities Act RegulationsAct, the Company will to notify you promptly Canaccord Xxxxx Inc. and upon Canaccord Xxxxx Inc.’s request to prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many copies as the Commission Underwriters may from time to time reasonably request of an appropriate amendment amended Prospectus or a supplement (in form and substance satisfactory to you) the Prospectus which will correct such statement or omission or effect such compliance, and will use its best efforts in case any Underwriter is required by law to have deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and Shares at any time nine months or more after the Company will promptly deliver to each time of the Agent such number issue of copies of any preliminary prospectus, the Prospectus, upon the Registration StatementUnderwriters request but at the expense of such Underwriter, to prepare and all amendments of and supplements deliver to such documents, if any, Underwriter as you many copies as the Underwriters may reasonably request.
(drequest of an amended or supplemented Prospectus complying with Section 10(a)(3) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.Act;
(e) The Company will To make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but in any event not later than 45 days after the forty-fifth (45th) day following the end of its the full fiscal quarter in which first occurring after the first anniversary date of the effective date of the Registration Statement occurs(as defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company which are substantially similar to the Shares, without the prior written consent of Canaccord Xxxxx Inc. other than the sale of the Shares to be sold by the Company hereunder (i) sales of shares of Common Stock upon the exercise of currently outstanding options and warrants; (ii) sales or issuances of shares of Common Stock pursuant to any equity incentive plan established for the benefit of employees, officers and directors of, and consultants and advisors to, the Company, and pursuant to any awards thereunder (“Employee Equity Incentives”), (iii) the issuance of shares of Common Stock upon the conversion of currently outstanding convertible securities and (iv) the issuance of warrants, and the sale of shares of Common Stock upon exercise thereof, to Xxxxxxx, Xxxxxxxxxxxx in accordance with the terms of the Business Development Agreement, dated October 23, 2006, among the Company, Microgy, Inc. and Xxxxxxx, Xxxxxxxxxxxx.
(g) Not to grant options to purchase shares of Common Stock which would become exercisable during a period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, other than Employee Equity Incentives;
(h) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated subsidiaries certified by independent public accountants) and to make available (within the meaning of Rule 158 158(b) under the Act) as soon as practicable after the end of each of the Securities Act Regulations) covering a period first three quarters of at least twelve consecutive months each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement.), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three five years from the effective date of the Registration Statement, the Company will to furnish to you the Underwriters upon request copies of (i) all reports or other communications (financial or other) furnished to its stockholders; stockholders generally, and (ii) all reportsdeliver to the Underwriters as soon as they are available, copies of any reports and financial statements and proxy furnished to or information statements filed by the Company with the Commission Commission, the American Stock Exchange or any national securities exchangeexchange on which any class of securities of the Company is listed (such financial statements to be on a combined or consolidated basis to the extent the accounts of the Company and its subsidiaries are combined or consolidated in reports furnished to its stockholders generally or to the Commission), it being acknowledged and agreed that any such report, communication or financial statements which are or are made publicly available via the Commission’s XXXXX filing system need not be separately delivered;
(j) To use the net proceeds acquired by it from the sale of the Shares in the manner specified in the Pricing Prospectus and the Prospectus under the caption “Use of Proceeds” and in a manner such that the Company will not become an “investment company” as that term is defined in the Investment Company Act;
(k) Not to accelerate the vesting of any option issued under any stock option plan such that any such option may be exercised within 90 days from the date of the Prospectus, except to the extent necessary as part of any severance arrangement with any departing employee;
(l) To use its best efforts to list, subject to notice of issuance, the Shares on the American Stock Exchange;
(m) To give prompt notice to Canaccord Xxxxx Inc. if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, and, if requested by Canaccord Xxxxx Inc., to prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; and
(n) If the Company elects to rely upon rule 462(b), to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M. (Eastern Time), on the date of this Agreement, and at the time of filing to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Environmental Power Corp), Underwriting Agreement (Environmental Power Corp)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriter of which the Underwriter shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Underwriter shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Underwriter and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Registered Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission, and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Underwriter) in accordance with the requirements of the Act.
(d) The Company will not give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriter in connection with the offering of the Registered Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Underwriter 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 to which the Underwriter or Xxxxxxx, Xxxxx & Xxxxxxx LLP ("Underwriter's Counsel") shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Underwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Registered Securities for offering and sale under the securities laws of such jurisdictions as the Underwriter may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Underwriter agrees that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 Registered Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Registered Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriter's Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Underwriter promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriter's Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriter copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriter may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Underwriter, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(gh) During a period of three five (5) years from after the effective date hereof if required by law or the applicable rules of the Registration StatementCommission, any securities exchange or the NASD, the Company will furnish to you copies its stockholders, as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to the Underwriter:
(i) all concurrently, if required (when available if not), with furnishing such reports to its stockholders; and , statements of operations of the Company for each of the first three quarters in the form furnished to the Company's stockholders;
(ii) concurrently with furnishing to its stockholders, an annual report;
(iii) as soon as they are available, copies of all reportsother reports (financial or other) mailed to the Company's stockholders;
(iv) as soon as they are available, copies of all reports and financial statements and proxy furnished to or information statements filed with the Commission, any securities exchange or the NASD; (v) every material press release in respect of the Company or its affairs which was released or prepared by the Company with the Commission or any national securities exchange.Company; and
Appears in 2 contracts
Samples: Underwriting Agreement (Art Renaissance Inc), Underwriting Agreement (Infinite Technology Group LTD)
Covenants of the Company. The Company covenants and agrees with ------------------------ each of the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you the Underwriters immediately (and, if requested by youthe Underwriters, will confirm such notice in writing)
) (i) when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of or supplement to the Registration Statement or the ProspectusProspectus or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be delivered under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-post- effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any post-effective amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement Securities Act Regulations) to which you the Underwriters or Underwriters' Counsel (as hereinafter defined) shall reasonably object in writing after being timely furnished in advance object, will furnish the Underwriters with copies of any such amendment or supplement a copy thereofreasonable 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 the Underwriters or counsel for the Underwriters shall reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent Underwriters or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Underwriters) which will correct such statement or omission and or which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possibleeffect such compliance.
(c) The Company will promptly deliver has delivered to you two the Underwriters five signed copies of the Registration StatementStatement as originally filed, including exhibits exhibits, and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters, from time to time during the period that the Prospectus is required to be delivered under the Securities Act, such number of copies of any preliminary prospectus, the Prospectus, Prospectus and the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriters 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 occursoccurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), 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 StatementStatement (as defined in Rule 158(c) under the Securities Act).
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 180 days from the date hereofof the Prospectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issuewithout the prior written consent of Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), offer, sell, offer or agree contract ------------ to sell, grant any option for the sale ofto purchase, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) pledge or otherwise dispose of(or announce any offer, sale, contract to sell, grant of an option to purchase, pledge or other disposition) of any shares of Common Stock (of the Company or any securities convertible into, into or exercisable for or exchangeable for such Common Stock, except that the Company may issue (i) or any interest therein or announce any intention [shares of Common Stock and options to do any purchase Common Stock under its 1999 Stock Option Plan (as such term is defined in the Prospectus)], (ii) shares of Common Stock in connection with strategic relationships and acquisitions of businesses, technologies and products complementary to those of the foregoing without Company, so long as the prior written consent recipients of such shares agree to be bound by a lock-up agreement substantially in the form of Exhibit B hereto (which shall provide that any --------- transferees and assigns of such recipients shall be bound by the lock-up agreement) for the remainder of the Agent180-day lock-up period.
(g) During a period of three years from the effective date of the Registration StatementProspectus, the Company will furnish to you the Underwriters copies of (i) all reports to its stockholders; 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 proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., New York City time, on the date of this Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Digex Inc/De), Underwriting Agreement (Digex Inc/De)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriter and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Securities Act not later than the SEC's close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested applicable, such earlier time as may be required by youRule 430A(a)(3) under the Securities Act, will confirm such notice in writing)
and shall promptly advise the Underwriter (i) when any amendment to the Registration Statement and any amendments thereto shall have become effective, (ii) of any request by the Commission SEC for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing prevention or suspension of the use of any preliminary prospectus or the delivery to the Commission for filing of any amendment of Prospectus or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings thereforproceeding for that purpose, (v) of the receipt of any comments from the Commission and (viiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not file or prepare any amendment of the Commission shall propose Registration Statement or enter a stop order at any time, supplement to the Prospectus unless the Company will has furnished the Underwriter a copy for its review within a reasonable amount of time prior to filing or use and shall not file or use any such proposed amendment or supplement to which the Underwriter reasonably objects. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(b) If If, at any time when a prospectus Prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission SEC, subject to the second sentence of subsection (a) of this section 5, an appropriate amendment or supplement (in form and substance satisfactory to you) which will that shall correct such statement or omission and will use its best efforts to have any or an amendment to the Registration Statement declared effective as soon as possiblethat shall effect such compliance.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriter as soon as practicable, but not later than 45 days after the end of its the 12-month period beginning at the end of the fiscal quarter in of the Company during which the first anniversary date of the "effective date of the Registration Statement occursregistration statement" (as defined in Rule 158 of the Rules) occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (in form complying with which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act. The Company may satisfy this requirement by complying with Rule 158 of the Rules.
(d) The Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and all amendments thereof and, so long as delivery of a Prospectus by an Underwriter or dealer may be required by the Securities Act Regulationsor the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request.
(e) covering a period The Company shall use its best efforts to qualify the number of at least twelve consecutive months beginning Shares reasonably requested by the Underwriter for sale under the state securities laws of such states as may be mutually agreed upon between the Underwriter and the Company and to continue such qualifications in effect so long as required for the purpose of the offering. The qualifications may be undertaken by the Company's counsel or by the Underwriter's counsel, as agreed to by both parties. The Company will pay all expenses related to such qualifications and the related memorandum regardless of which counsel undertakes the qualification. Copies of all applications for the registration of securities and related documents (except for the Registration Statement and Prospectus) filed with the various states shall be supplied by counsel seeking the qualification to counsel for the other party, and copies of all comments and orders received from the various states shall be supplied to counsel for the other party as promptly as possible. Immediately after the effective date Effective Date of the Registration Statement, counsel seeking the qualifications shall advise the Underwriter in writing of all states where the offering has been registered for sale, canceled, withdrawn or denied, the state of such event(s), and the number of Shares registered.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in For a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from one year after the date hereofof this agreement, the Company will not, shall supply to the Underwriter copies of such financial statements and will not permit other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its affiliatescapital stock and to furnish to the Underwriter a copy of each annual or other report it shall be required to file with the SEC.
(g) Except as disclosed in the Registration Statement, without the prior written consent of the Underwriter, for a period of 180 days after the date of this agreement, the Company shall not issue, sell or register with the SEC (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into or exercisable or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to issuethe Registration Statement and the issuance of shares pursuant to the Company's existing stock option plan. In the event that, during this period, (i) any shares are issued pursuant to the Company's existing stock options or option plan or (ii) any registration is effected on Form S-8 or on any successor form, the Company shall obtain the written agreement of each grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this agreement, such person will not, without the prior written consent of Underwriter, offer for sale, sell, offer or agree to selldistribute, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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, directly or indirectly, or exercise any Common Stock registration rights with respect to, any shares of common stock (or any securities convertible into, exercisable for for, or exchangeable for Common Stockany shares of common stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agentowned by such person.
(gh) During a period Prior to the date that is 60 days after the time of three years from the effective date of the Registration Statementclosing, the Company will furnish not issue, directly or indirectly, without the Underwriter's prior written consent, which shall not be unreasonably withheld, any press release or other communication or hold any press conference with respect to you copies of the Company or its activities or this offering.
(i) The Company will comply with all of the provisions of any undertakings contained in the Prospectus or the Registration Statement.
(j) The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth in the Prospectus.
(k) Except as stated in this agreement and in the Prospectus, the Company will not take, directly or indirectly (except for any action taken by the Underwriter), any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the common stock to facilitate the sale or resale of the Shares.
(l) The Company will not make any payments or distributions to its stockholders for the purpose of funding, directly or indirectly, any tax liabilities of its stockholders.
(m) The Company shall take all such action required to be taken by it to cause the Shares to be approved for quotation on the OTC Bulletin Board at the earliest practicable date following the closing.
(n) The Company agrees to pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus, and the printing, filing and distribution of this agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriter; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in subsection 5(e), including the reasonable fees and disbursements of counsel for the Underwriter in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriter or by dealers to whom Shares may be sold; (v) the filing fees of the National Association of Securities Dealers, Inc. in connection with its review of the terms of the public offering; (vi) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of all reports to its stockholdersand information required by subsection 5(f); (vii) inclusion of the Shares for quotation on the OTC Bulletin Board; and (iiviii) all reportstransfer taxes, financial statements if any, with respect to the sale and proxy or information statements filed delivery of the Shares by the Company with to the Commission Underwriter. Subject to the provisions of section 8, the Underwriter agrees to pay, whether or not the transactions contemplated hereby are consummated or this agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriter under this agreement not payable by the Company pursuant to the preceding sentence, including the costs and expenses of its own counsel, except that the Company shall reimburse the Underwriter at the time of closing the amount, not to exceed $5,000, for the Underwriter's accountable reasonable fees and expenses (including, but not limited to, out-of-pocket items such as legal fees, travel, accommodations, telephone expenses, courier fees, suppliers, and related disbursements) incurred in connection herewith.
(o) At no time during the period of one year following the Effective Date will the Company's officers, directors (including persons serving in such capacities as of the time of closing or during any part of the period mentioned above), or any national securities exchangeowners, beneficially or of record, of 5% or more of the issued and outstanding common stock of the Company as listed in the Prospectus (together the "Described Stockholders") offer for sale or sell, directly or indirectly, any common stock owned, directly or indirectly, by them without the Underwriter's prior written consent. At no time during the period of two years following the Effective Date will any Described Stockholder offer for sale or sell, directly or indirectly, any Shares of the common stock owned, directly or indirectly, by them at the time of closing without the Underwriter's prior written consent unless such Shares are sold to or through the Underwriter. The Company will take all appropriate actions to prevent any such offers or sales including the placing of a legend restricting transfer thereof to the foregoing effect on the stock certificate, with specific reference to this subsection of this agreement, the issuance of written "stop-transfer" instructions to the transfer agent, and the delivery to the Underwriter, at or prior to the execution of this agreement, of a written undertaking from each of the Described Stockholders agreeing to the provisions of this subsection.
Appears in 2 contracts
Samples: Underwriting Agreement (Electric Aquagenics Unlimited Inc), Underwriting Agreement (Electric Aquagenics Unlimited Inc)
Covenants of the Company. The Company covenants and agrees with you and the ------------------------ Agent several Underwriters participating in the Offering of any Series of Certificates that:
(ia) If In connection with the Registration Statement has not yet been declared effective on the date execution of this each Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement to cause be filed under the Act setting forth the principal amount of Certificates covered thereby and their terms not otherwise specified in the Prospectus, the price at which the Certificates are to be purchased by the Underwriters from the Company, either the initial public offering price or the method by which the price at which the Certificates 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 Company deem appropriate in connection with the offering of the Certificates, but the Company will not file any amendments to the Registration Statement and or any amendments thereto or supplements to become effective as promptly as possiblethe Prospectus, unless it shall first have delivered copies of such amendments or supplements to you, 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 filingshall not have objected thereto promptly after receipt thereof. 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 advise you immediately (and, if requested by you, will confirm such notice in writing)
or your counsel promptly (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement and any amendments thereto has become or will become effective, and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) offer and sale of the mailing Certificates, or the delivery to the Commission for filing of any amendment of proceedings or supplement examinations that may lead to the Registration Statement such an order or the Prospectuscommunication, (iv) of the issuance whether by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiationCommission or any authority administering any state securities or Blue Sky law, or the threatening, of any proceedings therefor, (v) of the receipt of any comments from the Commission and (vi) of the receipt by as soon as the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any timeis advised thereof, the Company and will use its best efforts to prevent the issuance of any such stop order andor communication and to obtain as soon as possible its lifting, if issued.
(b) The Company will cause any Computational Materials and any Structural Term Sheets (each as defined in Section 8 below) with respect to each Series of Certificates that are delivered by the Underwriters to the Company pursuant to Section 8 to be filed with the Commission on a Current Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities Exchange Act of 1934, as Amended (the "Exchange Act") on the business day immediately following the day on which such Computational Materials and Structural Term Sheets are delivered to obtain counsel for the lifting Company by any of the Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such order as soon as possibleComputational Materials and Structural Term Sheets to be so filed prior to 2:00 p.m., New York time, on such business day), and will promptly advise you when such Current Report has been so filed. The Company will not 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 Underwriters to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act on the business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the company by any of the Underwriters prior to 10:30 a.m. In addition, if at any time prior to the availability of the related Prospectus Supplement, any of the Underwriters has delivered to any prospective investor a subsequent Collateral Term Sheet that reflects, in the reasonable judgment of such Underwriter and the Company, a material change in the characteristics of the Mortgage Loans for the related Series from those on which a Collateral Term Sheet with respect to the related Series previously filed with the Commission was based, the Company will cause any such Collateral Term Sheet that is delivered by such Underwriter to the Company in accordance with the provisions of Section 9 to be 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 amendment materials provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in the Registration Statement or any amendment reasonable determination of or supplement to the Prospectus (including the prospectus Company are not required to be filed pursuant to Rule 424(b)or Rule 434the Xxxxxx Letters or the PSA Letter (each as defined in Section 8 below), or (ii) contain erroneous information or contain any untrue statement of a material fact or, when read in conjunction with the Prospectus and Prospectus Supplement, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood, however, that differs from the prospectus on Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Computational Materials or ABS Term Sheets (as defined in Section 9 below) provided by such Underwriter to the Company pursuant to Section 8 or Section 9 hereof. The Company shall give notice to you and such Underwriter of its determination not to file at the time any materials pursuant to clause (i) of the effectiveness of the Registration Statement before preceding sentence and agrees to file such materials if such Underwriter or after the effective date of the Registration Statement to which you shall reasonably object in writing to such determination within one business day after being timely furnished in advance a copy thereofreceipt of such notice.
(bc) If at any time when a prospectus relating to the Shares Certificates is required to co be delivered under the Securities Act any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company promptly will notify you promptly and 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 or an amendment which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statementeffect such compliance; provided, including exhibits and all amendments theretohowever, and that the Company will promptly deliver not be required to each file any such amendment or supplement with respect to any Computational Materials, Structural Term Sheets or Collateral Term Sheets incorporated by reference in the Prospectus other than any amendments or supplements of such Computational Materials or Structural Term Sheets that are furnished to the Agent Company by the Underwriter pursuant to Section 8(e) hereof or any amendments or supplements of such number of copies of any preliminary prospectus, Collateral Term Sheets that are furnished to the Prospectus, Company by the Registration Statement, and all amendments of and supplements Underwriter pursuant to such documents, if any, as you may reasonably requestSection 9(d) hereof which are required to be filed in accordance therewith.
(d) The With respect to each Series of Certificates, the Company will endeavor in good faithmake generally available to the holders of the Certificates and will deliver to you, in cooperation each case as soon as practicable, an earnings statement covering the twelve-month period beginning after the date of the Terms Agreement in respect of such series of Certificates, which will satisfy the provisions of Section 11(a) of the Act with you, at or prior respect to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processCertificates.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and furnish 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 copies of the Registration Statement occurs(two of which will be signed and will include all documents and exhibits thereto or incorporated by reference therein), an earnings statement (each related preliminary prospectus, the Prospectus, and all amendments and supplements to such documents, 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 Statementeach case as soon as available and in such quantities as you request.
(f) Other than The Company will arrange for the Company's issuance qualification of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange Certificates for sale and the determination of any currently outstanding stock options or warrants, (iii) in exchange their eligibility for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated investment under the Securities Act which laws of such jurisdictions as you reasonably designate and will continue such qualifications in effect so long as reasonably required for the distribution; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is exempt from registration under the Securities Act, during the period of 90 days from not qualified on the date hereof, of the Company will related Terms Agreement or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for on the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any date of the economic consequences related Terms Agreement, subject to such service 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 foregoing without the prior written consent of the Agentprocess.
(g) During a period The Company will pay all expenses incidental to the performance of three years from its obligations under this Agreement and any Terms Agreement and will reimburse the effective date Underwriters for any expenses (including fees and disbursements of counsel and accountants) incurred by them in connection with qualification of the Registration StatementCertificates 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 Certificates, for the filing fee of the National Association of Securities Dealers, Inc. relating to the Certificates, 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 Certificates pursuant to this Agreement, the Company will furnish file or cause to you copies of (i) be filed, on a timely and complete basis, all reports documents that are required to its stockholders; and (ii) all reports, financial statements and proxy or information statements be filed by the Company with the Commission pursuant to Section 13, 14 or any national securities exchange15(d) of the Exchange Act.
(i) So long as the Certificates of a Series shall be outstanding, the Company will deliver to you the annual statement of compliance delivered to the Trustee pursuant to the Pooling and Servicing Agreement and the annual statement of a firm of independent public accountants furnished to the Trustee pursuant to the Pooling and Servicing Agreement as soon as such statements are furnished to the Trustee.
Appears in 2 contracts
Samples: Underwriting Agreement (Bear Stearns Commercial Mortgage Securities Inc), Underwriting Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent you that:
(ia) If It will cooperate in all respects in making the Registration Statement has Prospectus effective and will not yet 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 declared effective on 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 date of this AgreementAct and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possibleadvise you, and if Rule 430A is used or confirm the filing advice in writing, of the Prospectus is otherwise required under Rule 424(b) receipt of any comments of the Commission or Rule 434any state securities department, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effectivebecomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, (ii) when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any request by the Commission for any post-effective 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 any additional information, (iii) supplementing of the mailing Prospectus or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectusadditional information with respect thereto, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Prospectus or any post-effective amendment thereto order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities, the Option Securities or the Underwriters' Securities for sale offering in any jurisdiction jurisdiction, or of the initiation or threatening institution of any proceeding proceedings for that purpose. If the Commission shall propose or enter a stop order at any timesuch purposes, the Company and will use its best efforts to prevent the issuance of any such stop 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 order 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 Underwriters' Securities for such period as soon 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 Underwriters' Securities and will use its best efforts to cause the same to become effective as promptly as possible. The Company will not shall file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including in form and substance satisfactory to the prospectus required Underwriter) or transmit the Prospectus by a means reasonably calculated to be filed result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)or Rule 434424(b)(3) that differs from not later than the prospectus Commission's close of business on file at the time earlier of (i) the effectiveness second business day following the execution and delivery of this Agreement, and (ii) the Registration Statement before or fifth business day after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Statement. In case of the happening, at any time when within such period as a prospectus relating to the Shares Prospectus is required under the Act to be delivered under in connection with the initial sale of the Securities, the Option Securities Act and the Underwriters' Securities, of any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or Company has knowledge and which materially affects the Company, include 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, therein not misleading in the light of the circumstances under which they were are made, not misleading, or if it shall be necessary at . The preparation and furnishing of any time to amend such amendment or supplement to the Prospectus or Registration Statement 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 Act or and the Underwriters' Securities Act under the Act, the Rules and Regulations, the Company will notify you promptly and 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 Registration Statement declared effective as soon as possibleapplicable state securities laws.
(cb) The Company It will promptly deliver cooperate to you two signed copies of qualify the Registration Statement, including exhibits and all amendments thereto, Securities and the Company will promptly deliver to each of Option Securities and the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Underwriters' Securities for offering and 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 maintain 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 required for the distribution thereof; except that Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Underwriters' Securities remain outstanding in no event shall 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 be obligated as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in connection therewith 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 qualify you at or before the Initial Closing Date three signed 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 foreign corporation 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 execute a general consent to service of processtime reasonably request.
(e) The Company will make generally available (within apply the meaning of Section 11(a) net proceeds from the sale of the Securities Actand 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) to its security holders and to you as 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 anniversary date (1st) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement occursStatement, the Company will make available to its security holders and the Underwriter an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement.
(f, which shall satisfy the requirements of Section 11(a) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership Act and Rule 158(a) 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 foregoing without the prior written consent of the AgentRules and Regulations.
(g) During a period of three years Non-Accountable Expense Allowance and other Costs and Expenses. The Company shall pay to the Underwriter at each closing date, and to be deducted from the effective date purchase price for the Securities and the Option Securities, an amount equal to three percent (3%) of the Registration Statementgross proceeds received by the Company from the sale of the Securities and the Option Securities at such closing date less in the case of the Initial Closing Date, the Company will furnish sum of $50,000 previously paid by the Company. If the sale of the Securities by the Underwriter is not consummated for any reason not attributable to you copies of the Underwriter, or if (i) all reports to its stockholders; and the Company withdraws the Registration Statement from the Commission or does not proceed with the public offering, or (ii) the representations in Section 3 hereof are not correct or the covenants cannot be complied with, or (iii) there has been a 10 11 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 reports, financial statements and proxy or information statements filed as determined by the Underwriter, then the Company with shall reimburse the Commission or Underwriter for its out of pocket expenses including without limitation, its legal fees and disbursements all on an accountable basis but not to exceed $75,000 (less the $50,000 previously paid by the Company), and if any national securities exchangeexcess remains from the advance previously paid, such excess will be returned to the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Medical Science Systems Inc), Underwriting Agreement (Medical Science Systems Inc)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 To prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriters and to file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Act not later than the Commission's close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this Agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested by youapplicable, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request earlier time as may be required by the rules and regulations of the Commission for under the Act, to make no further amendment or any amendment of or supplement to the Registration Statement Statement, the Pricing Prospectus or Prospectus which shall be reasonably disapproved by Wedbush Xxxxxx Securities Inc. promptly giving reasonable notice thereof; to advise Wedbush Xxxxxx Securities Inc., promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Pricing Prospectus or the Prospectus or for any additional informationamended Pricing Prospectus or Prospectus has been filed and to furnish Wedbush Xxxxxx Securities Inc. copies thereof; to advise Wedbush Xxxxxx Securities Inc., (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectuspromptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any Issuer Free Writing Prospectus, Preliminary Prospectus or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement, the Pricing Prospectus or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Issuer Free Writing Prospectus, the Company will Preliminary Prospectus or Prospectus or suspending any such qualification, to use promptly 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. its withdrawal;
(b) The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus promptly all material required to be filed by the Company with the Commission pursuant to Rule 424(b)or 433(d) under the Act;
(c) Promptly, from time to time, to take such action as Wedbush Xxxxxx Securities Inc. may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as Wedbush Xxxxxx Securities Inc. may request and to comply with such laws so as to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(d) To furnish the Underwriters with copies of each Issuer Free Writing Prospectus, any Preliminary Prospectus and the Prospectus in such quantities as the Underwriters may from time to time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 434173(a) that differs from under the prospectus on file Act) is required at any time prior to the expiration of nine months after the time of the effectiveness issuance of the Registration Statement before Prospectus in connection with the offering or after the effective date sale of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Shares and if at such time any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event events shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or or, if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement in order to comply with the Act, to notify Wedbush Xxxxxx Securities Act or the Inc. and upon Wedbush Xxxxxx Securities Act Regulations, the Company will notify you promptly and Inc.'s request to prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many copies as the Commission Underwriters may from time to time reasonably request of an appropriate amendment amended Prospectus or a supplement (in form and substance satisfactory to you) the Prospectus which will correct such statement or omission or effect such compliance, and will use its best efforts in case any Underwriter is required by law to have deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and Shares at any time nine months or more after the Company will promptly deliver to each time of the Agent such number issue of copies of any preliminary prospectus, the Prospectus, upon the Registration StatementUnderwriters request but at the expense of such Underwriter, to prepare and all amendments of and supplements deliver to such documents, if any, Underwriter as you many copies as the Underwriters may reasonably request.
(drequest of an amended or supplemented Prospectus complying with Section 10(a)(3) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.Act;
(e) The Company will To make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but in any event not later than 45 days after the forty-fifth (45th) day following the end of its the full fiscal quarter in which first occurring after the first anniversary date of the effective date of the Registration Statement occurs(as defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with the provisions of Rule 158 Section 11(a) of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after and the effective date rules and regulations of the Registration Statement.Commission thereunder (including, at the option of the Company, Rule 158);
(f) Other than During the Company's issuance period beginning from the date hereof and continuing to and including the 180 days after the date of Common Stockthe Prospectus (the "Lock-Up Period"), will not, without the prior written consent of Wedbush Xxxxxx Securities Inc., (i) pursuant sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any existing employee benefit plans, (ii) upon the exercise, conversion option to purchase or exchange otherwise dispose of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliatesagree to dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain increase a "put equivalent position" (position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1(hSection 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, (ii) file or cause to be declared effective a registration statement under the Exchange Act)Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable for Common Stock, (iii) enter into any swap, derivative transaction swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction is to be settled by delivery of Common Stock, other Stock or any such securities, in cash or other considerationotherwise, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or otherwise dispose of(iii) above. The foregoing sentence shall not apply to (A) the registration of Shares and the sale of Shares to the Underwriters pursuant to this Agreement, any (B) the issuance of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, (C) other than the grant of options described in the Prospectus, the issuance and registration of employee stock options not exercisable during the Lock-Up Period pursuant to stock option or any securities convertible intowarrant plans described in the Registration Statement and (D) the issuance and registration of shares pursuant to the 2006 Employee Stock Purchase Plan; provided, exercisable for or exchangeable for Common Stockhowever, that if (I) or any interest therein or announce any intention to do any during the period that begins on the date that is 17 calendar days before the last day of the foregoing without Lock-Up Period and ends on the prior written consent last day of the Agent.Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (II) prior to 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 the restrictions imposed by this clause (f) shall continue to apply until the expiration of the date that is 18 calendar days after the date of such issuance of the earnings release or the material news or the material event occurs;
(g) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flow of the Company and its consolidated subsidiaries certified by independent public accountants) and to make available (within the meaning of Rule 158(b) under the Act) as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(h) During a period of three years from the effective date of the Registration Statement, the Company will to furnish to you the Underwriters upon request copies of (i) all reports or other communications (financial or other) furnished to its stockholders; stockholders generally, and (ii) all reportsdeliver to the Underwriters as soon as they are available, copies of any reports and financial statements and proxy furnished to or information statements filed by the Company with the Commission Commission, the Nasdaq Global Market or any national securities exchangeexchange on which any class of securities of the Company is listed (such financial statements to be on a combined or consolidated basis to the extent the accounts of the Company and its subsidiaries are combined or consolidated in reports furnished to its stockholders generally or to the Commission); provided that the Company may satisfy each of the requirements of this subsection by making any such reports or other communications generally available on its website;
(i) To use the net proceeds acquired by it from the sale of the Shares in the manner specified in the Pricing Prospectus and the Prospectus under the caption "Use of Proceeds" and in a manner such that the Company will not become an "investment company" as that term is defined in the Investment Company Act;
(j) Not to accelerate the vesting of any option issued under any stock option plan such that any such option may be exercised during the Lock-Up Period;
(k) To use its best efforts to list for quotation, subject to notice of issuance, the Shares on the Nasdaq Global Market System;
(l) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(m) To give prompt notice to Wedbush Xxxxxx Securities Inc. if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, and, if requested by Wedbush Xxxxxx Securities Inc., to prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; and
(n) If the Company elects to rely upon rule 462(b), to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M. (Eastern Time), on the date of this Agreement, and at the time of filing to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Willdan Group, Inc.), Underwriting Agreement (Willdan Group, Inc.)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (andthe Representatives immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of or supplement to the Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement or Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Representatives notice of its intention to file or prepare any post-effective amendment thereto to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the initiationSecurities which differs from the Prospectus first provided to the Underwriters for use in confirming sales of the Securities, whether or the threatening, of any proceedings therefor, (vnot such revised prospectus is required to be filed pursuant to Rule 424(b) of the receipt 1933 Act Regulations), will furnish the Representatives with copies of any comments 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 the Representatives or counsel for the Underwriters shall reasonably object.
(c) The Company has delivered to the Representatives one copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (without exhibits) as the Representatives may reasonably request.
(d) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to the Representatives and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(vif) The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required by applicable law. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for sale in any state or jurisdiction or the initiation initiating or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(eg) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby (or 120 days in the case of the Registration Statement occursclose of the Company's fiscal year), an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of at least twelve consecutive months beginning after the effective Company's fiscal quarter next following the date of the Registration Statementthis Agreement.
(fh) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, the Securities in the manner to be specified in the Prospectus Supplement under "Use of Proceeds".
(i) pursuant to any existing employee benefit plansImmediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (iithe "Prospectus Supplement"), containing the terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with such Rule 424(b) upon of the exercise, conversion or exchange 1933 Act Regulations copies of any currently outstanding stock options or warrants, the Prospectus (iiiincluding such Prospectus Supplement).
(j) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of 90 days the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) During a period from and including the date hereofof this Agreement through and including the day which is 30 days after the date of this Agreement, the Company will not, and will not permit any without the prior written consent of its affiliatesBanc of America Securities LLC, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (debt securities or any securities convertible into, into or exchangeable or exercisable for or exchangeable any debt securities (except for Common Stock) or any interest therein or announce any intention the Securities sold to do any of the Underwriters pursuant to this Agreement); provided that the foregoing without shall not prevent the prior written consent of Company from making borrowings under the AgentRevolving Loan Agreement or under bank credit lines.
(gl) During a period In accordance with the Cuba Act, if applicable, and without limitation to the provisions of three years from the effective date of the Registration StatementSections 6 and 7 hereof, the Company will furnish agrees to you copies indemnify and hold harmless the Underwriters from and against any and all loss, liability, claim, damage and expense whatsoever (including fees and disbursements of (i) all reports to its stockholders; and (ii) all reportscounsel), financial statements and proxy or information statements filed as incurred, arising out of any violation by the Company with of the Commission or any national securities exchangeCuba Act, if applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Kb Home), Underwriting Agreement (Kb Home)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Representative shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representative and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Registered Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) in accordance with the requirements of the Act.
(d) The Company will not give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Registered Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Representative 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 to which the Representative or Camhy Karlxxxxx & Xteix XXX ("Underwriters' Counsel") shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Registered Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agree that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 Registered Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Registered Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriters copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(fh) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from five (5) years after the date hereof, the Company will notfurnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and will make available to its stockholders unaudited quarterly reports of earnings, and will not permit any of its affiliates, directly or indirectly, deliver to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.Representative:
(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 concurrently with furnishing such quarterly reports to its stockholders; and , statements of income of the Company for each quarter in the form furnished to the Company's stockholders;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reportsreports (financial or other) mailed to stockholders; (iv) as soon as they are available, copies of all reports and financial statements and proxy furnished to or information statements filed by the Company with the Commission Commission, the Nasdaq National Market or any national securities exchange.;
Appears in 2 contracts
Samples: Underwriting Agreement (Riviera Tool Co), Underwriting Agreement (Riviera Tool Co)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriter of which the Underwriter shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Underwriter shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Underwriter and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Registered Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereoforder.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 2 contracts
Samples: Underwriting Agreement (Rollerball International Inc), Underwriting Agreement (Rollerball International Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(a) The Company will (i) If prepare and timely file with the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 Commission under Rule 424(b) or Rule 434, a Prospectus containing information previously omitted at the Company will file time of effectiveness of 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 Registration Statement in reliance on Rule 434, the Company will prepare 430A; and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by not file with the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus (A) of which the Underwriters shall not previously have been advised and furnished with a copy a reasonable period of time prior to the proposed filing and as to which filing the Underwriters shall not have given their consent or (B) which is not in compliance with the Securities Act and the Rules.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Underwriters promptly (i) of any request made by the Commission for amendment of the Registration Statement, for supplement to the Prospectus or for any additional information, ; (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiationStatement, or the threatening, institution or threat of any proceedings thereforaction, investigation or proceeding for that purpose; or (viii) of the 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 Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the The 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 or withdrawal thereof as soon as possible. .
(c) The Company will not file (i) on or before the Closing Date, deliver to the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any amendment to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriters); (ii) as promptly as possible deliver to the Underwriters, at such office as the Underwriters may designate, as many copies of the Prospectus as the Underwriters may reasonably request; and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any amendment of or supplement to the Prospectus (including and of any amended prospectus, filed by the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from Company with the prospectus on file at Commission, as the time of Underwriters may reasonably request for the effectiveness of purposes contemplated by the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofSecurities Act.
(bd) If If, at any time when during the period in which a prospectus relating to the Shares is required by law to be delivered under the Securities Act by an Underwriter or dealer, any event relating to or affecting the Company, or of which the Company shall have occurred be advised in writing by the Underwriters, shall occur as a result of which it is necessary, in the opinion of counsel for the Company or of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in light of the circumstances existing at the time it is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as then so supplemented or amended or supplemented would, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madeexisting at the time such Prospectus is delivered to such purchaser, not misleading. If, after the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of the offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it shall be necessary at any time to amend in the opinion either of counsel for the Company or supplement of counsel for the Underwriters such proposed variation requires that the Prospectus be supplemented or Registration Statement to comply with the Securities Act or the Securities Act Regulationsamended, the Company will notify you promptly and forthwith prepare and file with the Commission a supplement to the Prospectus or an appropriate amendment amended prospectus setting forth such variation. The Company authorizes the Underwriters and all dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or supplement supplemented, in connection with the sale of the Shares in accordance with the applicable provisions of the Securities Act and Rules for such period.
(in form and substance satisfactory e) Prior to the filing thereof with the Commission, the Company will submit to you) which will correct such statement or omission , for your information and will use its best efforts to have prior consent, a copy of any post-effective amendment to the Registration Statement declared effective as soon as possibleand any supplement to the Prospectus or any amended prospectus proposed to be filed.
(cf) The Company will promptly deliver to you two signed copies of the Registration Statementcooperate, including exhibits when and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithrequested by you, in cooperation with you, at or prior to the time qualification of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering offer and sale under the securities or blue sky laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and and, during the period in which a prospectus is required by law to maintain be delivered by an Underwriter or a dealer, in keeping such qualification qualifications in effect for so long as required for the distribution thereofgood standing under said securities or blue sky laws; except provided, however, that in no event shall the Company shall not be obligated in connection therewith required to qualify as a foreign corporation or to execute a file any general consent to service of processprocess in any jurisdiction in which it is not so qualified. The Company will from time to time prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for distribution of the Shares.
(eg) The Company will make generally available agrees to pay the costs and expenses relating to the following matters: (within i) the meaning preparation, printing or reproduction and filing with the Commission of Section 11(athe Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Securities ActRegistration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including the transfer agent fees and any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act and the listing of the Shares on the Nasdaq National Market; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its security holders and to you as obligations hereunder.
(h) As soon as practicable, but in any event not later than 45 days after the end of its the first fiscal quarter in which first occurring after the first anniversary date of the effective date Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the Registration 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) rules and regulations promulgated under the Securities Act which is exempt from registration under the Securities Act, during an earnings statement that will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158(a) of the rules and regulations promulgated thereunder.
(i) During a period of 90 days from three years after the date hereof, the Company will furnish or make available to the Underwriters copies of all periodic and special reports furnished to the stockholders of the Company including but not limited to (i) as soon as reasonably practicable after the end of each fiscal year, copies of the Company's Annual Report and (ii) as soon as reasonably 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 information, documents or reports filed with the Commission.
(j) 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.
(k) For a period of 180 days following the date of the Final Prospectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issuewithout the prior written consent of X.X. Xxxxxxxxx + Co., LLC, on behalf of the Underwriters, (1) sell, offer offer, contract to sell, sell any option or agree contract to purchase, purchase any option or contract to sell, grant any option for option, right or warrant to purchase, transfer the sale of, pledgeeconomic risk of ownership in, make any short sale sale, lend, pledge or maintain otherwise issue or dispose of any short position, establish shares of capital stock of the Company or maintain a "put equivalent position" any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire any shares of capital stock of the Company (within or publicly announce its intention to do any of the meaning of Rule 16a-1(h) under the Exchange Actforegoing), except (i) pursuant to the exercise of warrants outstanding on the date hereof and as described in the Prospectus or (ii) pursuant to the exercise of stock options outstanding on the date hereof, or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and as described in the Prospectus, (2) enter into any swap, derivative transaction swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of capital stock of the Common Stock Company (or publicly announce its intention to do any of the foregoing), regardless of whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock, shares of capital stock of the Company or such other securities, in cash or otherwise, or (3) file any registration statement related to any transaction described in clause (1) or (2) above, except in each of clauses (1), (2) and (3) as required by this Agreement.
(l) The Company will cause the Shares to be duly included for quotation on the Nasdaq National Market prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(o) The Company will use its best efforts to timely file all such reports, forms or other considerationdocuments as may be required from time to time, under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company is familiar with the Investment Company Act of 1940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(q) The Company has caused to be delivered to you a letter in the form provided by X.X. Xxxxxxxxx + Co., LLC (the "Lock-Up Agreement") from (i) each of the Company's directors, each of the Company's executive officers, and each holder of the Company's equity securities which, alone or together with such holder's affiliates or affiliated funds, holds not less than one percent (1%) of the outstanding equity securities of the Company measured on an as-converted to Common Stock basis on the date hereof (each a "One Percent Holder") stating in each case that such director, officer or One Percent Holder agrees that he, she, or it will not, without the prior written consent of X.X. Xxxxxxxxx + Co., LLC, directly or indirectly, (i) sell, offer, 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, transfer the economic risk of ownership in, make any short sale, lend, pledge or otherwise dispose of, of any Common Stock (shares of capital stock of the Company or any securities convertible into, into or exchangeable or exercisable for or exchangeable for Common Stock) any other rights to purchase or acquire any interest therein shares of capital stock of the Company (or publicly announce any its intention to do any of the foregoing foregoing), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of capital stock of the Company, regardless of whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise, and regardless of whether such person or entity directly or beneficially currently owns or later acquires the shares of capital stock or other equity securities of the Company involved in such transaction, in each case for a period of 180 days after the date of the final Prospectus.
(r) The Company shall not, directly or indirectly, without the prior written consent of X.X. Xxxxxxxxx + Co., LLC, on behalf of the AgentUnderwriters, amend, terminate or waive, in full or in part, any provision of any Company Lock-Up.
(gs) During a period of three years from The Company shall at all times comply with the effective date requirements of the Registration StatementXxxxxxxx-Xxxxx Act of 2002 in effect from time to time, and all rules and regulations promulgated thereunder or implementing the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangeprovisions thereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Alibris Inc), Underwriting Agreement (Alibris Inc)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Representative shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representative and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Registered Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) in accordance with the requirements of the Act.
(d) The Company will not give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Registered Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Representative 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 to which the Representative or Camhy Xxxxxxxxx & Xxxxx LLP ("Underwriters' Counsel") shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Registered Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agree that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 Registered Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Registered Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriters copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(fh) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from five (5) years after the date hereof, the Company will notfurnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and will make available to its stockholders unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the Nasdaq National Market or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the Company (and any future subsidiaries) or its businesses which the Representative may reasonably request. During such five-year period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or so consolidated.
(i) The Company will maintain a transfer agent (the "put equivalent position" (within the meaning of Rule 16a-1(hTransfer Agent") and, if necessary under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any jurisdiction of incorporation of the economic consequences of ownership of Company, a registrar (which may be the same entity as the transfer agent) for 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 and the foregoing without the prior written consent of the AgentRepresentative's Warrants.
(gj) During a period The Company will furnish to the Representative or on the Represen- tative's order, without charge, at such place as the Representative may designate, copies of three years from each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed, legally binding and enforceable Lock-up Agreements. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company shall use its best efforts to cause its officers, directors, stockholders or affiliates (within the meaning of the Regulations) not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Registered Securities substantially in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Regulations.
(o) The Company shall cause the Registered Securities to be quoted on the NASDAQ SmallCap Market, and for a period of two (2) years from the date hereof shall use its best efforts to maintain the quotation of the Registered Securities to the extent outstanding.
(p) For a period of two (2) years from the Closing Date, the Company shall furnish to you copies the Representative, at the Company's sole expense, daily consolidated transfer sheets relating to the Common Stock.
(q) For a period of five (5) years after the effective date of the Registration Statement the Company shall, at the Company's sole expense, take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the Blue Sky laws of those jurisdictions which do not require the Company to qualify as a foreign corporation or to file a general consent to service of process.
(r) The Company (i) prior to the effective date of the Registration Statement, has filed a Form 8-A with the Commission providing for the registration of the Common Stock under the Exchange Act and (ii) as soon as practicable, will use its best efforts to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Xxxxx'x OTC Manual and to continue such inclusion for a period of not less than five (5) years.
(s) The Company agrees that for a period of thirteen (13) months following the effective date of the Registration Statement it will not, without the prior written consent of National, offer, issue, sell, contract to sell, grant any option for the sale of or otherwise dispose of any Common Stock, or securities convertible into Common Stock, except for the issuance of the Option Shares, the Representative's Warrants, and shares of Common Stock issued upon the exercise of currently outstanding warrants or options issued under any stock option plan in effect on the Closing Date, shares of Common Stock automatically granted pursuant to any stock option plan in effect on the Closing Date, or shares of Common Stock issued pursuant to any employee stock purchase plan in effect on the Closing Date.
(t) Until the completion of the distribution of the Registered Securities, the Company shall not without the prior written consent of National or Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) all reports to its stockholders; five (5) years from the date hereof, and (ii) the sale to the public of the Representative's Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form 1 (or other appropriate form) for the registration under the Act of the Representative's Shares.
(v) The Company agrees that it shall use its best efforts, which shall include, but shall not be limited to, the solicitation of proxies, to elect one (1) designee of National to the Company's Board of Directors for a period of five (5) years following the Closing, provided that such designee is reasonably acceptable to the Company.
(w) The Company agrees that within forty-five (45) days after the Closing it shall retain a public relations firm which is acceptable to National. The Company shall keep such public relations firm, or any replacement, for a period of three (3) years from the Closing. Any replacement public relations firm shall be retained only with the consent of National.
(x) The Company agrees that any and all reportsfuture transactions between the Company and its officers, financial statements directors, principal stockholders and proxy the affiliates of the foregoing persons will be on terms no less favorable to the Company than could reasonably be obtained in arm's length transactions with independent third parties, and that any such transactions also be approved by a majority of the Company's outside independent directors disinterested in the transaction.
(y) The Company shall prepare and deliver, at the Company's sole expense, to National within the one hundred and twenty (120) day period after the later of the effective date of the Registration Statement or information statements filed the latest Option Closing Date, as the case may be, one bound volume containing all correspondence with regulatory officials, agreements, documents and all other materials in connection with the offering as requested by the Company with the Commission or any national securities exchangeUnderwriters' Counsel.
Appears in 2 contracts
Samples: Underwriting Agreement (Us Golf & Entertainment Inc), Underwriting Agreement (Us Golf & Entertainment Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent each Underwriter that:
(ia) If After the Registration Statement has not yet been declared effective on the date execution and delivery of this Agreement, the Company will use its best efforts to cause not, at any time, whether before or after the Registration Statement and any amendments thereto to become effective as promptly as possibleEffective Date, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus of which you shall not previously have been advised and furnished with a copy, or which you or Porter, Wright, Morrxx & Xrthxx ("xounsel for the Underwriters") shall not have approved (which approval shall not be unreasonably withheld or delayed) or which is not in compliance with the Act or the Rules and Regulations.
(b) If the Registration Statement has not become effective, the Company will promptly file the Final Amendment with the Commission and will use its best efforts to cause the Registration Statement to become effective. If the Registration Statement has become effective, the Company will file the Rule 430A Prospectus or other Prospectus with the Commission as promptly as practicable, but in no event later than is permitted by Rule 424(b). The Company will promptly advise you (i) when the Registration Statement, or any post-effective amendment thereto, shall hereafter become effective, or any amendments or supplements to the Prospectus shall have been filed with the Commission; (ii) of any request of the Commission or any state or other regulatory body for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to of the Registration Statement or the Prospectus, Prospectus or for additional information and the nature and substance thereof; (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any preliminary prospectus or prohibiting the offer or sale of any of the Shares or of the initiation, or the threatening, initiation of any proceedings therefor, for such purpose; (viv) of the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose; and (v) of the happening of any event during the periods in which the Prospectus is to be used in conjunction with the offer or sale of Shares which makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts to prevent the issuance of any such stop order or any order preventing or suspending the use of the Registration Statement or Prospectus and, if such order is issued, to obtain the lifting of such order thereof as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver prepare and file with the Commission, upon your request, any such amendments of or supplements to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, Statement or the Prospectus, in form satisfactory to Squire, Sandxxx & Xempxxx ("xounsel for the Registration StatementCompany"), as in the opinion of counsel for the Underwriters may be necessary or advisable in connection with the distribution of the Shares or any change in the price at which, or the terms upon which, the Shares may be offered by you, and all amendments of and supplements will use its best efforts to such documents, if any, cause the same to become effective as you may reasonably requestpromptly as possible.
(d) The Company will endeavor comply with the Act and the Rules and Regulations and the Exchange Act and the rules and regulations thereunder so as to permit the continuance of sales of and dealings in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating Act and the Exchange Act. If at any time when a prospectus is required to be delivered under the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no Act an event shall the Company be obligated in connection therewith to qualify have occurred as a foreign corporation result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or not misleading in any material respect or to execute a general consent to service of process.make the Prospectus comply with the Act and the
(e) The Company will make generally available (within the meaning comply with all 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of any undertakings contained in the Registration Statement.
(f) Other than The Company will take all reasonable actions to furnish to whomever you direct, when and as requested by you, all necessary documents, exhibits, information, applications, instruments and papers as may be required or, in the Company's issuance opinion of Common Stockcounsel for the Underwriters, (i) pursuant desirable in order to any existing employee benefit plans, (ii) upon permit or facilitate the exercise, conversion sale of the Shares. The Company will use its best efforts to qualify or exchange of any currently outstanding stock options or warrants, (iii) in exchange register the Shares for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated sale under the Securities Act which is exempt from registration under so-called blue sky laws of such jurisdictions as you shall request, to make such applications, file such documents and furnish such information as may be required for such purpose and to comply with such laws so as to continue such qualification in effect so long as required for the Securities Actpurposes of the distribution of the Shares; provided, during the period of 90 days from the date hereofhowever, that the Company will not, shall not be required to qualify as a foreign corporation in any jurisdiction; and will provided further that the Company shall not permit be required to file a consent to service of process in any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant jurisdiction in any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or action other arrangement that transfers to another, in whole or in part, any than one arising out of the economic consequences of ownership offering or sale 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 foregoing without the prior written consent of the AgentShares.
(g) During a the period of three two years from commencing on the effective date of the Registration StatementEffective Date, the Company will furnish to you each Underwriter, in such number of copies of as such Underwriter may reasonably request, (i) within 90 days after the end of each fiscal year of the Company, either (A) a consolidated balance sheet of the Company and its then consolidated subsidiaries, and a separate balance sheet of each subsidiary, if any, of the Company the accounts of which are not included in such consolidated balance sheet, as of the end of such fiscal year, and consolidated statements of income and retained earnings of the Company and its then consolidated subsidiaries, and separate statements of income and retained earnings of each of the subsidiaries, if any, of the Company the accounts of which are not included in such consolidated statements, for the fiscal year then ended, all reports to its stockholdersin reasonable detail, prepared in accordance with generally accepted accounting principles, consistently applied, and all certified by independent accountants (within the meaning of the Act and the Rules and Regulations), or (B) the Company's Form 10-K for such fiscal year as filed with the Commission in accordance with the Exchange Act; and (ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, either (A) similar balance sheets as of the end of such fiscal quarter and similar statements of income and retained earnings for the fiscal quarter then ended, all reportsin reasonable detail, and all certified by the Company's principal financial statements officer or the Company's principal accounting officer as having been prepared in accordance with generally accepted accounting principles, consistently applied, or (B) the Company's Form 10-Q for such fiscal quarter as filed with the Commission in accordance with the Exchange Act; (iii) as soon as available, each report and each proxy or information statements statement furnished to or filed by the Company with the Commission or any national securities exchange and each report and financial statement furnished to the Company's stockholders generally; and (iv) any material reports filed by the Company in connection with the quotation of its Common Stock in the Nasdaq National Market ("Nasdaq/NM") or any listing on any stock exchange.
(h) Counsel for the Company, the Company's accountants and the officers of the Company will respectively furnish the opinions, the letters and the certificates referred to in subsections (e), (g), (h) and (i) of Section 10 hereof, and, in the event that the Company shall file any amendment to the Registration Statement relating to the offering of the Shares or any amendment or supplement to the Prospectus relating to the offering of the Shares subsequent to the Effective Date, whether pursuant to subsection (c) of this Section 7 or otherwise, such counsel, such accountants and such officers will, at the time of such filing or at such subsequent time as you shall specify, respectively, furnish to you such opinions, letters and certificates, each dated the date of its delivery, of the same nature as the opinions, letters and certificates referred to in said subsections (e), (g), (h) and (i), respectively, as you may reasonably request, or, if any such opinion, letter or certificate cannot be furnished by reason of the fact that such counsel or such accountants or any such officer believes that the same would be inaccurate, such counsel or such accountants or any such officer will furnish an accurate opinion, letter or certificate with respect to the same subject matter.
(i) Prior to the expiration of the Option, the Company will not issue, directly or indirectly, without first consulting with you and counsel for the Underwriters, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
(j) Except as described in the Prospectus or as contemplated by this Agreement, the Company shall not, without your prior written consent, sell, contract to sell or otherwise dispose of any shares of Common Stock, or any securities convertible into shares of Common Stock, for a period of 180 days after the Effective Date.
(k) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus and will deliver promptly to the Representatives a signed copy of each Form SR filed by it with the Commission.
(l) The Company has applied, or will, prior to the Effective Date, apply for the listing of the Shares on Nasdaq/NM and will use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the Closing Date.
(m) The Company will file with the NASD all documents and notices required of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported on the Nasdaq/NM.
(n) After the Closing Time and the Option Exercise Time, the Company will be in compliance with the financial record-keeping requirements and internal accounting control requirements of Section 13(b)(2) of the Exchange Act.
(o) As soon as practicable after the Effective Date, the Company will make generally available to its security holders and deliver to you an earnings statement (which need not be audited)
Appears in 2 contracts
Samples: Underwriting Agreement (Team America Corporation), Underwriting Agreement (Team America Corporation)
Covenants of the Company. The Company covenants and agrees with the each ------------------------ Agent thatUnderwriter as follows:
(a) The Company will notify the Representative immediately, and confirm the notice in writing, (i) If of the Registration Statement has not yet been declared effective on the date effectiveness of this Agreement, the Company will use its best efforts to cause the Registration Statement and any amendments amendment thereto to become (including any post-effective as promptly as possibleamendment), 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when of the Registration Statement and receipt of any amendments thereto become effectivecomments from the Commission, (iiiii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings therefor, (v) of the 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 Shares 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 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 the lifting of such order as soon as possible. thereof at the earliest possible moment.
(b) The Company will not give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including the prospectus required to be filed Prospectus, whether pursuant to Rule 424(b)or Rule 434the 1933 Act, the 1934 Act or otherwise, will furnish the Representative 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 the Representative or counsel for the Underwriters shall object.
(c) that differs from The Company will deliver to the prospectus on file at the time of the effectiveness Representative as many signed copies of the Registration Statement before as originally filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the effective date Representative may reasonably request and will also deliver to the Representative a conformed copy of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(bd) If at any The Company will furnish to each Underwriter, from time to time during the period when a prospectus relating to the Shares Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Agent circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the CompanyProspectus (in form and substance satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver furnish to each of the Agent such Underwriters a reasonable number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestamendment or supplement.
(df) The Company will endeavor in good faithendeavor, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereofdesignate; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eg) The Company will make generally available (within the 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 50 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a 12-month period beginning not later than the first day of at least twelve consecutive months beginning after the Company's fiscal quarter next following the "effective date date" (as defined in said Rule 158) of the Registration Statement.
(fh) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, the Securities in the manner specified in the Prospectus under "Use of Proceeds".
(i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(j) During a period of 90 days from the date hereofof the Pricing Agreement, the Company will not, and will not permit any of its affiliateswithout the Representative's prior written consent, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (Securities or securities similar to the Securities, or any securities convertible into, into or exchangeable or exercisable for or exchangeable for Common Stock) any Securities or any interest therein or announce any intention such similar securities, except for Securities sold to do any of the foregoing without the prior written consent of the AgentUnderwriters pursuant to this Agreement.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 2 contracts
Samples: Purchase Agreement (MGM Grand Inc), Purchase Agreement (MGM Grand Inc)
Covenants of the Company. The Company covenants and agrees the Bank covenant with the ------------------------ Agent thatas follows:
(ia) If The Company and the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 Bank will prepare and file a term sheet that complies such amendments or supplements to the Registration Statement, the Prospectus, the Conversion Application and the Proxy Statement as may hereafter be required by the Securities Act Regulations or the Conversion Regulations or as may hereafter be requested by the Agent. Following completion of the Subscription and Community Offering, the Company and the Bank will (i) promptly prepare and file with the requirements Commission a post-effective amendment to the Registration Statement relating to the results of Rule 434.
the Subscription and Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective amendment is required, will, if required, file with the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription and Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either case in a form acceptable to the Agent. The Company and the Bank will notify you immediately (andthe Agent immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment of the Registration Statement Statement, the filing of any supplement to the Prospectus and the filing of any amendments thereto become effectiveamendment to the Conversion Application, (ii) of the receipt of any comments from the OTS or the Commission with respect to the transactions contemplated by this Agreement or the Plan, (iii) of any request by the Commission or the OTS for any amendment of or supplement to the Registration Statement or the Conversion Application or any amendment or supplement to the Prospectus or for any additional information, (iiiiv) of the mailing issuance by the OTS of any order suspending the Offerings or the delivery to use of the Commission for filing Prospectus or the initiation of any amendment of or supplement to the Registration Statement or the Prospectusproceedings for that purpose, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or suspending the use of the initiation, Prospectus or any Issuer-Represented Free Writing Prospectus or the threatening, initiation of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification notice with respect to the suspension of the any qualification of the Shares Securities for offering or sale in any jurisdiction or jurisdiction. The Company and the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company Bank 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 the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file thereof at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofearliest possible moment.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event shall have occurred or development as a result of which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company has notified or will notify promptly the Agent 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 the Agent expressly for use therein.
(c) The Company represents and agrees that, unless it obtains the prior written consent of the Agent, and the Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 of the Security Act Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Agent 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 of the Security Act Regulations, 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.
(d) The Company and the Bank will give the Agent notice of its intention to file or prepare any amendment to the Holding Company Application, the Conversion Application or 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 which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) or (c) of the Securities Act Regulations), will furnish the Agent 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 the Agent or counsel for the Agent may object.
(e) The Company and the Bank will deliver to the Agent as many signed copies and as many conformed copies of the Holding Company Application, the Conversion Application and the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Agent may reasonably request, and from time to time such number of copies of the Prospectus as then the Agent may reasonably request.
(f) During the period when the Prospectus is required to be delivered, the Company and the Bank will comply, at their own expense, with all requirements imposed upon them by the OTS, by the applicable Conversion Regulations, as from time to time in force, and by the OTC Bulletin Board, the Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If any event or circumstance shall occur as a result of which it is necessary, in the opinion of counsel for the Agent, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company and the Bank will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented would, in the judgment of the Agent or the Company, Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company and the Bank will promptly deliver furnish to each of the Agent such a reasonable number of copies of any preliminary prospectussuch amendment or supplement. For the purpose of this subsection, the Prospectus, Company and the Registration Statement, and all amendments of and supplements Bank will each furnish such information with respect to such documents, if any, itself as you the Agent may from time to time reasonably request.
(dh) The Company and the Bank will endeavor in good faithtake all necessary action, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementAgent, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states of the Shares of such United States and other jurisdictions as you the Conversion Regulations may designate require and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall Agent and the Company have agreed; provided, however, that the Company and the Bank shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company and the Bank will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(ei) The Company authorizes Sandler X’Xxxxx to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or “blue sky” laws of the various jurisdictions in which the Offerings will be made (the “Blue Sky Survey”).
(j) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months the Company’s fiscal quarter next following the “effective date” (as defined in Rule 158 of the Securities Act Regulations) of the Registration Statement that will satisfy the provisions of Section 11(a) of the Securities Act.
(k) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated balance sheets and consolidated statements of income, stockholders’ equity and cash flows, certified by an independent registered public accounting firm) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the Bank for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(fl) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted, and (ii) from time to time, such other information concerning the Company as the Agent may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission shall be deemed furnished to the Agent.
(m) The Company and the Bank will conduct the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or the Bank by the OTS.
(n) The Company and the Bank will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(o) The Company will report the use of proceeds from the Offerings on its first periodic report filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(p) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its filing obligations under the Exchange Act. The Company will use its best efforts to effect and maintain the listing for quotation the Common Stock on the OTC Bulletin Board for not less than three years and, once listed on the OTC Bulletin Board, the Company will comply with all applicable corporate governance standards, if any, required by the OTC Bulletin Board. The Company will file with the OTC Bulletin Board all documents and notices required by the OTC Bulletin Board of companies that have issued securities that are traded on the OTC Bulletin Board.
(q) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with Rule 2790 of the FINRA’s Conduct Rules and all related rules.
(r) Other than the Company's issuance of Common Stock, (i) pursuant to in connection with any existing employee benefit plans, (ii) upon the exercise, conversion plan or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction arrangement described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofProspectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities for a period of 180 days following the Closing Time.
(gs) During a the period of three years from beginning on the effective date hereof and ending on the later of the Registration Statementthird anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7, respectively, neither the Company nor the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(t) The Company and the Bank will comply with the conditions imposed by or agreed to with the OTS in connection with its approval of the Holding Company Application and the Conversion Application.
(u) The Company shall not deliver the Securities until the Company and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived in writing by the Agent.
(v) The Company or the Bank will furnish to you copies Sandler X’Xxxxx as early as practicable prior to the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Bank which have been read by Xxxxxx & Company, LLP, as stated in their letters to be furnished pursuant to subsections (if) all reports to its stockholders; and (iig) of Section 5 hereof.
(w) Each of the Company and the Bank will conduct its business in compliance in all reportsmaterial respects with all applicable federal and state laws, financial statements rules, regulations, decisions, directives and proxy orders, including all decisions, directives and orders of the Commission, the OTC Bulletin Board and the OTS.
(x) The Bank will not amend the Plan in any manner that would affect the sale of the Securities or information statements filed the terms of this Agreement without the consent of the Agent.
(y) The Company and the Bank will not, prior to the Closing Time, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business consistent with past practice, except as contemplated by the Prospectus.
(z) The Company and the Bank will use all reasonable efforts to comply with, or cause to be complied with, the conditions precedent to the several obligations of the Agent specified in Section 5 hereof.
(aa) The Company and the Bank will provide the Agent with any information necessary to carry out the Commission or any national securities exchangeallocation of the Securities in the event of an oversubscription, and such information will be accurate and reliable in all material respects.
(bb) The Company and the Bank will notify the Agent when funds have been received for the minimum number of Securities set forth in the Prospectus.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriters that:
(ia) If After the Registration Statement has not yet been declared effective on the date execution and delivery of this Agreement, the Company will use its best efforts to cause not at any time, whether before or after the Registration Statement and any amendments thereto to become effective as promptly as possibleEffective Date, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus of which you shall not previously have been advised and furnished with a copy, or which you or Vorys, Satex, Xxxxxxx xxx Peasx XXX ("Counsel for the Underwriters") shall not have approved (which approval shall not be unreasonably withheld or delayed) or which is not in compliance with the Act or the Rules and Regulations.
(b) If the Registration Statement has not become effective, the Company will promptly file the Final Amendment with the Commission and will use its best efforts to cause the Registration Statement to become effective. If the Registration Statement has become effective, the Company will file the Rule 430A Prospectus or other Prospectus with the Commission as promptly as practicable, but in no event later than is permitted by Rule 424(b). The Company will promptly advise you (i) when the Registration Statement or any additional informationpost-effective amendment thereto shall hereafter become effective, or any amendments or supplements to the Prospectus or any document which shall be incorporated by reference into the Prospectus shall have been filed with the Commission; (iiiii) of the mailing or the delivery to nature and substance of any request of the Commission or any state or other regulatory body for filing of any amendment of or supplement to of the Registration Statement or the Prospectus, Prospectus or for additional information; (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any Preliminary Prospectus or prohibiting the offer or sale of any of the Shares or of the initiation, or the threatening, initiation of any proceedings therefor, for such purpose; (viv) of the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose; and (v) of the happening of any event during the periods in which the Prospectus is to be used in conjunction with the offer or sale of Shares which makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not 18 19 misleading. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts to prevent the issuance of any such stop order or any order preventing or suspending the use of the Registration Statement or Prospectus and, if such order is issued, to obtain the lifting of such order thereof as soon promptly as possible. .
(c) The Company will not prepare and file with the Commission, upon your request, any amendment such amendments of or supplements to the Registration Statement or any amendment the Prospectus, in form satisfactory to Porter, Wright, Morrxx & Xrthxx ("Xounsel for the Company"), as, in the opinion of Counsel for the Underwriters, may be necessary or supplement to advisable in connection with the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time distribution of the effectiveness of Shares or any change in the Registration Statement before price at which, or after the terms upon which, the Shares may be offered by you and will use its best efforts to cause the same to become effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas promptly as possible.
(bd) The Company will comply with the Act, the Rules and Regulations and the Exchange Act, and the rules and regulations thereunder, so as to permit the continuance of sales of and dealings in the Shares under the Act and the Exchange Act. If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any an event shall have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or not misleading in any material respect or to make the Prospectus comply with the Act and the Rules and Regulations, the Company will notify you promptly thereof and will, subject to the provisions of Section 7(a) hereof, file with the Commission an amendment or supplement which will correct such statement in accordance with the requirements of Section 10 of the Act and shall furnish to the Underwriters a reasonable number of copies of an amendment or amendments or of a supplement or supplements to the Prospectus (in form and substance reasonably satisfactory to Counsel for the Company and Counsel for the Underwriters) which shall amend or supplement the Prospectus so that, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include an Prospectus 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, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser of the Shares, 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 . The Company will notify you promptly and prepare and not file with the Commission an appropriate or use any 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 Registration Statement declared effective or the Prospectus of which the Underwriters have not first been furnished a copy or as soon as possible.
to which the Underwriters shall reasonably object after having been furnished such copy. For the purposes of this subsection (c) The d), the Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver Bank shall furnish such information with respect to each of themselves as the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements Underwriters from time to such documents, if any, as you time reasonably may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning comply with all 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of any undertakings contained in the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the The Company will nottake all reasonable actions to furnish to whomever you direct, when and will not permit any as requested by you, all necessary documents, exhibits, information, applications, instruments and papers as may be required or, in the opinion of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option Counsel for the Underwriters, desirable in order to permit or facilitate the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.Shares. The
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriter that:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause (A) prepare and timely file with 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 Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Underwriter (such approval not to be unreasonably withheld or Rule 434, delayed) containing information previously omitted at 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 effectiveness of Rule 434.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement in reliance on Rule 430A of the Rules and any amendments thereto become effectiveRegulations, (iiB) of any request by the Commission for not file any amendment of or supplement to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the ADSs by the Underwriter.
(b) The Company will advise the Underwriter promptly (A) when the Registration Statement, the ADS Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the ADS Registration Statement or for supplement to the Prospectus or for any additional information, information and (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the ADS Registration Statement or the use of the Prospectus or of the initiation, or the threatening, institution of any proceedings therefor, (v) of the 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 Shares 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 The Company will use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued, .
(c) The Company will cooperate with the Underwriter in endeavoring to obtain qualify the lifting Offered ADSs for sale under the securities laws of such jurisdictions as the Underwriter may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or to become liable for taxes in any jurisdiction where it is not so liable as of the date of this Agreement. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriter may reasonably request for distribution of the Offered ADSs.
(d) The Company will deliver to, or upon the order of, the Underwriter, from time to time, as soon many copies of any Preliminary Prospectus as possiblethe Underwriter may reasonably request. The Company will not file any amendment deliver to, or upon the order of, the Underwriter during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Company will deliver to the Registration Statement Underwriter at or any amendment of or supplement to before the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness Closing Date, four signed copies of the Registration Statement before or after and all amendments thereto including all exhibits filed therewith, and will deliver to the effective date Underwriter such number of copies of the Registration Statement to which you shall (including such number of copies of the exhibits filed therewith that may reasonably object in writing after being timely furnished in advance a copy thereofbe requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriter may reasonably request.
(be) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Offered ADSs as contemplated in this Agreement, the Deposit Agreement and the Prospectus. If at any time when during the period in which a prospectus relating to the Shares is required by law to be delivered under by the Securities Act Underwriter or a dealer, any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldwhich, in the judgment of the Agent Company or in the Companyreasonable opinion of the Underwriter, include an untrue statement of a material fact it becomes necessary to amend or omit to state any material fact required to be stated therein or necessary supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser, not misleading, or or, if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulationsany law, the Company promptly will notify you promptly and either (i) 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 Registration Statement declared effective or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as soon as possibleso 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.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(ef) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you holders, as soon as practicableit is practicable to do so, but in any event not later than 45 days 15 months after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occursStatement, an earnings earning statement (which need not be audited) in form complying with the provisions of Rule 158 of the Securities Act Regulations) reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriter in writing when such statement has been so made available.
(fg) Other than Prior to the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofClosing Date, the Company will notfurnish 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 period subsequent to the period covered by the most recent financial statements appearing or incorporated by reference in the Registration Statement and will not permit the Prospectus.
(h) No offering, sale, short sale or other disposition of any of its affiliatesthe Company's Equity Shares or ADSs or other securities convertible into or exchangeable or exercisable for such securities or derivative of such securities (or agreement for such) will be made for a period of 60 days after the date of this Agreement, directly or indirectly, to issue, sell, offer by the Company otherwise than hereunder or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without with the prior written consent of the AgentUnderwriter.
(gi) During a period The Company will use its best efforts to ensure that the Offered ADSs will be admitted to trading on the Nasdaq SmallCap Market.
(j) The Company has caused each of three years from Xxxx Xxxxxxxxxxxx, Xxx Xxxx, Rediffusion Holdings Private Limited and Quintrol Technologies Private Limited to furnish to the effective Underwriter, on or prior to the date of this Agreement, a letter or letters, substantially in the Registration Statementform attached hereto as Exhibit B (the "Lockup Agreement").
(k) The Company shall apply the net proceeds of its sale of the Offered ADSs as set forth in the Prospectus.
(l) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Offered ADSs 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 its Equity Shares, and will comply in all material respects with its obligations under the Deposit Agreement.
(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.
(o) The Company agrees to indemnify and hold the Underwriter harmless against any documentary, stamp or similar issuance or transfer taxes, duties or fees, including any interest and penalties, which are or may be required to be paid in connection with the creation, allotment, issuance, offer and distribution of the Equity Shares or the Offered ADSs and the execution, delivery and performance of this Agreement and the Deposit Agreement; provided, however, that the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reportsneither indemnify nor hold the Underwriter harmless against any tax, financial statements and proxy whether on capital gains, income or information statements filed by otherwise, imposed on the Company Underwriter in connection with the Commission or any national securities exchangeUnderwriter's execution, delivery and performance of this Agreement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If Promptly following the Registration Statement has not yet been declared effective on the date execution of this Agreement, the Company will use its best efforts prepare a prospectus supplement setting forth the terms of such Shares not otherwise specified in the Prospectus, the price at which the Shares are to cause be purchased by the Registration Statement and any amendments thereto to become effective as promptly as possibleUnderwriter from the Company, and if Rule 430A is used or such other information as you and the filing Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Shares. The Company will file promptly transmit copies of the Prospectus (properly completed if Rule 430A has been used) prospectus supplement to the Commission for filing pursuant to Rule 424(b) or Rule 434 within of the prescribed time period 1933 Act Regulations and will provide evidence satisfactory furnish to you the Underwriter as many copies of the Prospectus and such timely filing. If prospectus supplement as the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Underwriter shall reasonably request.
(iib) The Company will notify you immediately (andthe Underwriter immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any amendment to the Registration Statement and Statement, or when any amendments thereto become effectivesupplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any preliminary prospectus supplement, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for that purposeany of such purposes. If the Commission shall propose or enter a stop order at any time, the 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 the lifting of such order as soon as possiblethereof at the earliest possible moment. The If the Company elects to rely on Rule 434, the Company will not provide the Underwriter with copies of the form of Rule 434 Prospectus, in such number as the Underwriter may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of this Agreement.
(c) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Shares, the Company will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use by the Underwriter in connection with the offering of the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the effectiveness 1933 Act Regulations or any term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will furnish the Underwriter 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 the Underwriter or counsel for the Underwriter shall reasonably object. 12
(d) The Company has furnished or will deliver to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement before as originally filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the effective date Underwriter a conformed copy of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas originally filed and of each amendment thereto (without exhibits) for the Underwriter.
(be) If at any time when a prospectus relating The Company will furnish to the Shares Underwriter, without charge, from time to time during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) If any event shall have occurred occur or condition shall exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriter or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an any untrue statement statements 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, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate Commission, subject to Section 3(b), such amendment or supplement (in form and substance satisfactory as may be necessary to you) which will correct such statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of or the Registration Statement, including exhibits and all amendments theretoProspectus comply with such requirements, and the Company will promptly deliver furnish to each of the Agent Underwriter such number of copies of any preliminary prospectus, such amendment or supplement as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriter may reasonably request.
(dg) The Company will endeavor in good faithuse its best efforts, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriter, to qualify, if necessary, qualify the Shares for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you the Underwriter may designate and to maintain such qualification qualifications in effect for so long as required for a period of not less than one year from the distribution thereofeffective date of the Registration Statement; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to execute subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Shares have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eh) The Company will make generally available (within the 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 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 13 Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months beginning after the Company's fiscal quarter next following the "effective date date" (as defined in said Rule 158) of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant In accordance with the Cuba Act and without limitation to the provisions of Sections 6 and 7 hereof, the Company agrees to indemnify and hold harmless the Underwriter from and against any existing employee benefit plansand all loss, liability, claim, damage and expense whatsoever (ii) upon the exerciseincluding fees and disbursements of counsel), conversion or exchange as incurred, arising out of any currently outstanding stock options or warrants, violation by the Company of the Cuba Act.
(iiij) The Company will use the net proceeds received by it from the sale of the Shares in exchange for shares the manner specified in the Prospectus under "Use of MGV Energy, Inc. currently held by minority shareholders thereof, or Proceeds."
(ivk) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period of 90 days from when the date hereofProspectus, is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will not, and will not permit any of its affiliatesit take, directly or indirectly, any action designed to issue, sell, offer or agree that might reasonably be expected to sell, grant any option for the sale of, pledge, make any short sale cause or maintain any short position, establish result in stabilization or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences of ownership price of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash facilitate the sale 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 resale of the foregoing without the prior written consent of the AgentShares.
(gm) During a period of three years from the effective date of the Registration Statement, the The Company will furnish use its best efforts to you copies have the shares of (i) all reports Common Stock which it agrees to its stockholders; and (ii) all reportssell under this Agreement listed, financial statements and proxy subject to notice of issuance, on the New York Stock Exchange on or information statements filed by before the Company with the Commission or any national securities exchangeClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Franchise Finance Corp of America)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:
(ia) If During the period in which a prospectus relating to the Shares is required to be delivered under the Securities Act, the Company will notify the Agent promptly of the time when any subsequent amendment to the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 any subsequent supplement to 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 filed 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; it will prepare and file with the Commission, (iii) promptly upon the Agent's request, any amendments or supplements to the Registration Statement or the Prospectus that, in the Agent's opinion, may be necessary or advisable in connection with the distribution of the mailing or Shares by the delivery to Agent; the Commission for filing of Company will not file any amendment of or supplement to the Registration Statement or the Prospectus (other than any prospectus supplement relating to the offering of other securities (including, without limitation, common stock other than pursuant to this Agreement) registered under the Registration Statement) unless a copy thereof has been submitted to the Agent a reasonable period of time before the filing and the Agent has not reasonably objected thereto; and it will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Prospectus; and the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(ivb) The Company will advise the Agent, promptly after it has received notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningStatement, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening threat of any proceeding for that any such purpose. If the Commission shall propose or enter a stop order at any time, the Company ; and it will promptly use its best all reasonable efforts to prevent the issuance of any such stop order and, if issued, or to obtain the lifting of its withdrawal if such a stop order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to should be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofissued.
(bc) If at any Within the time when during which a prospectus relating to the Shares is required to be delivered under the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act and by 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 and will file on or before their due date all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Shares. If during such period any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement or the Prospectus to comply with the Securities Act or the Securities Act RegulationsAct, the Company will promptly notify you promptly the Agent to suspend the offering of Shares during such period and prepare and file with the Commission an appropriate Company will amend or supplement the Registration Statement or the Prospectus (at the expense of the Company, unless the misstatements or omissions in question were made solely in reliance on written information relating to the Agent furnished to the Company by the Agent expressly for use in the Registration Statement or the Prospectus in which case such amendment or supplement (in form and substance satisfactory shall be at the expense of the Agent) so as to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent or effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestcompliance.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior use all reasonable efforts to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate the Agent designates and to maintain continue such qualification qualifications in effect for so long as required for the distribution thereof; of the Shares, except that in no event shall the Company shall not be obligated required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction.
(e) The Company will furnish to the Agent and its counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements (other than any prospectus supplement relating to the offering of other securities including, without limitation, Common Stock other than pursuant to this Agreement) to the Registration Statement or Prospectus that are filed with the Commission during the period in which a prospectus relating to the Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as available and in such reasonable quantities as the Agent may from time to time request and will also furnish copies of the Prospectus to the NYSE in accordance with Rule 153 of the Rules and Regulations.
(f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (within which need not be audited) covering a 12-month period that satisfies the meaning provisions of Section 11(a) of the Securities ActAct and Rule 158 of the Rules and Regulations.
(g) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its security holders and to you as soon as practicableobligations hereunder, including, but not later than 45 days after limited to, expenses relating to (i) the end of its fiscal quarter in which the first anniversary date of the effective date printing and filing of the Registration Statement occursas originally filed and of each amendment thereto, an earnings statement (ii) the preparation, issuance and delivery of the Shares, (iii) the reasonable fees and disbursements of the Company's counsel and accountants, (iv) the qualification of the Shares under securities laws in form complying accordance with the provisions of Rule 158 Section 4(d) of this Agreement, including filing fees and any reasonable fees or disbursements of counsel for the Agent in connection therewith, (v) the printing and delivery to the Agent of copies of the Securities Act RegulationsProspectus and any amendments or supplements thereto, and of this Agreement, (vi) covering a period of at least twelve consecutive months beginning after the effective date fees and expenses incurred in connection with the listing of the Registration Statement.
Shares on the NYSE, and (fvii) Other than filing fees of the Company's issuance Commission and, if applicable, the National Association of Common StockSecurities Dealers, (i) pursuant Inc. In addition to any existing employee benefit plans, (ii) upon fees that may be payable to the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated Agent under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofthis Agreement, the Company will promptly, upon the request of the Agent, reimburse the Agent for the reasonable fees and disbursements of the Agent's legal counsel incurred in connection with the establishment of the equity shelf program contemplated by this Agreement.
(h) The Company will apply Net Proceeds as set forth in the Prospectus.
(i) The Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree sell any shares of Common Stock (other than the Shares offered pursuant to sellthe provisions of this Agreement) or securities convertible into or exchangeable for, grant or any option rights to purchase or acquire, Common Stock during the period from the date of this Agreement through the final Closing Date for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within of Shares hereunder without giving the meaning of Rule 16a-1(h) under Agent at least three business days' prior written notice specifying the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any nature of the economic consequences of ownership of proposed sale and 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of such proposed sale; provided, however, that no such notice shall be required in connection with the Registration Statement, the Company will furnish to you copies Company's issuance or sale of (i) all reports shares of Common Stock pursuant to its stockholders; any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan of the Company and (ii) all reportsCommon Stock issuable upon conversion of securities or the exercise of warrants, financial statements options or other rights. The Company acknowledges that the Agent shall have the right to suspend the offering of Shares pursuant to Section 3 hereof upon receipt of the notice pursuant to the preceding sentence for such period of time as the Agent deems reasonable or appropriate.
(j) The Company shall advise the Agent immediately after it has received notice or obtained knowledge of any information or fact that would alter or affect the accuracy or validity of any opinion, certificate, letter and proxy other document provided to the Agent pursuant to Section 5 hereof.
(k) Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than a supplement filed pursuant to Rule 424(b) under the Securities Act that contains solely the information statements set forth in the final paragraph of Section 3 of this Agreement) or (ii) there is filed by the Company with the Commission any document incorporated by reference into the Prospectus (other than a Current Report on Form 8-K, unless the Agent shall otherwise reasonably request), the Company shall furnish or cause to be furnished to the Agent forthwith a certificate dated the date of filing with the Commission of such amendment, supplement or other document, or the date of effectiveness of such amendment, as the case may be, in form satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 5(g) hereof that was last furnished to the Agent are true and correct at the time of such amendment, supplement or filing, 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 certificate, a certificate of the same tenor as the certificate referred to in Section 5(g), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(l) Each time that (i) the Registration Statement or the Prospectus is amended or supplemented (other than a supplement filed pursuant to Rule 424(b) under the Securities Act that contains solely the information set forth in the final paragraph of Section 3 of this Agreement) or (ii) there is filed with the Commission any national securities exchangedocument incorporated by reference into the Prospectus (other than a Current Report on Form 8-K, unless the Agent shall otherwise reasonably request), the Company shall furnish or cause to be furnished forthwith to the Agent and to counsel to the Agent a written opinion of Vinson & Elkins L.L.P., couxxxx xo txx Xxxpany ("Company Counsel"), or other counsel satisfactory to the Agent, dated the date of filing with the Commission of such amendment, supplement or other document and the date of effectiveness of such amendment, as the case may be, in form and substance satisfactory to the Agent, of the same tenor as the opinion referred to in Section 5(d) hereof, 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.
(m) Each time that the Registration Statement shall be amended or the Prospectus supplemented to include additional amended financial information or there is filed with the Commission any document incorporated by reference into the Prospectus that contains additional amended financial information, the Company shall cause PricewaterhouseCoopers LLP, or other independent accountants satisfactory to the Agent, forthwith to furnish to the Agent 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 satisfactory to the Agent, of the same tenor as the letter referred to in Section 5(e) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(n) Each time that the Registration Statement shall be amended or the Prospectus supplemented to include additional amended reserve information or there is filed with the Commission any document incorporated by reference into the Prospectus which contains additional amended reserve information, the Company shall cause its chief petroleum engineer, or another engineer of the Company satisfactory to the Agent, forthwith to furnish the Agent a certificate, 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 satisfactory to the Agent, of the same tenor as the certificate referred to in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of the Shares other than the Agent.
Appears in 1 contract
Samples: Sales Agency Agreement (Newfield Exploration Co /De/)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriters, and acknowledges that each of them is relying on such covenants in connection with the purchase and sale of the Offered Shares, as follows:
(a) the Company will advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to NP 11-202 and will provide evidence reasonably satisfactory to the Underwriters of each such filing and copies of such receipts;
(b) the Company will advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) If the Registration Statement has not yet been declared effective on issuance by any applicable securities regulatory authority of any order suspending or preventing the date use of this Agreement, the Company will 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.Offering Document;
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission any applicable securities regulatory authority of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for sale Offered Shares, the Over-Allotment Option or the Broker Warrants in any jurisdiction of the Qualifying Jurisdictions, suspending the distribution of the Offered Shares, the Over-Allotment Option or the initiation Broker Warrants or suspending the trading of any securities of the Company;
(iii) the institution, threatening or contemplation of any proceeding for that purpose. If the Commission shall propose any such purposes; or
(iv) any requests made by any applicable securities regulatory authority for amending or enter a stop order at supplementing any timeOffering Document or for additional information, the Company and will use its best efforts to prevent the issuance of any such stop order referred to in (i) or (ii) above and, if any such order is issued, to obtain the lifting of such order withdrawal thereof as soon quickly as possible. The Company will not file any amendment to the Registration Statement or any amendment ;
(c) until completion of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time distribution of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 RegulationsOffered Shares, the Company will notify you promptly take, or cause to be taken, all commercially reasonable additional steps and prepare proceedings that may from time to time be required under Canadian Securities Laws to continue to qualify the distribution of the Offered Shares, the Over-Allotment Option and file 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 legal requirements in connection with the Commission an appropriate amendment transactions contemplated by this Agreement are obtained or supplement 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 form the United States and substance satisfactory the rules and policies of the CSE and the FSE), take or cause to yoube taken all action required to be taken by the Company and pay all filing fees required to be paid in connection with the transactions contemplated by this Agreement;
(e) which will correct such statement or omission and the Company will use its best efforts to have any amendment to maintain its status as a “reporting issuer” (or the Registration Statement declared effective as soon as possible.
(cequivalent thereof) The Company will promptly deliver to you two signed copies not in default of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to requirements of Canadian Securities Laws of each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior Qualifying Jurisdictions to the time of effectiveness of date that is 24 months following the Registration StatementClosing Date, provided that this covenant shall not prevent the Company from completing any transaction which would result in the Company ceasing to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for be a “reporting issuer” so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) holders of the Securities Act) to its security 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 to you as soon as practicablesecurities laws and the rules and policies of the CSE (or any securities exchange, but not later than 45 days after the end of its fiscal quarter in market or trading or quotation facility on 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.Common Shares are then listed or quoted);
(f) Other than the Company's Company will use its best efforts to maintain the listing of the Common Shares (including the Offered Shares and the Broker Warrant Shares) for trading on the CSE or such other recognized securities exchange, market or trading or quotation facility as the Underwriters may approve, acting reasonably, and comply with the rules and policies of the CSE or such other exchange, market or facility to the date that is 24 months following the Closing Date, provided that this covenant shall not prevent the Company from transferring its listing to the TSX Venture Exchange or 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 CSE (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 of shall be duly and validly authorized and issued as fully paid and non-assessable Common StockShares;
(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 Company will duly execute and deliver the Broker Warrant Certificates at the Closing Time and the Option Closing Time, as applicable, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Company;
(j) the Company will ensure, at all times until the date that is 24 months following the Closing Date, that sufficient Broker Warrant Shares are authorized and allotted for issuance upon due and proper exercise of the Broker Warrants. The Broker Warrant Shares, upon issuance in accordance with the terms of the Broker Warrant Certificates, shall be duly and validly issued as fully paid and non- assessable Common Shares;
(k) the Company will not, directly or indirectly, issue or sell any Common Shares or financial instruments convertible or exercisable into Common Shares or announce any intention to do so until the date which is 90 days after the Closing Date without the prior written consent of the Co- Lead Underwriters, 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 any existing employee benefit plansthe share incentive plan of the Company and other share compensation arrangements, (ii) upon the exercise, conversion or exchange exercise of any currently outstanding stock options or warrants, (iii) obligations of the Company in exchange for shares respect of MGV Energyexisting mineral property agreements, Inc. currently held by minority shareholders thereof, or (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;
(l) the Company will use its commercially reasonable efforts to cause each of its directors and officers to enter into lock-up agreements in a transaction described form satisfactory to the Company and the Underwriters, in Rule 145(a)(2) or (3) promulgated under the Securities Act both cases acting reasonably, which is exempt from registration under the Securities Actshall be negotiated in good faith and contain customary provisions, during the pursuant to which each such person agrees, among other things, to not, for a period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliatesClosing Date, directly or indirectly, to issueoffer, sell, offer or agree contract to sell, grant grant, without the prior written consent of the Co-Lead Underwriters, such consent not to be unreasonably withheld, any option for the sale of, pledgeto purchase, make any short sale sale, or maintain otherwise dispose of, or transfer, or announce any short positionintention to do so, establish any Common Shares, whether now owned (or maintain a "put equivalent position" (within the meaning of Rule 16a-1(hhereinafter acquired) directly or indirectly, or under the Exchange Act)their control or direction, or with respect to which each has beneficial ownership, or enter into any swap, derivative transaction or other arrangement that transfers to anotherhas the effect of transferring, in whole or in part, any of the economic consequences of ownership of the Common Stock (Shares, whether any such transaction is to be settled by the delivery of Common StockShares, other securities, cash or otherwise other consideration) or otherwise dispose of, any Common Stock (than pursuant to a take-over bid or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention other similar transaction made generally to do any all of the foregoing without the prior written consent shareholders of the Agent.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;
(gm) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you copies apply the net proceeds of the Offering in the manner specified in the Final Prospectus; provided that the Underwriters hereby acknowledge that there may be circumstances where, for sound business reasons, a re-allocation of funds may be necessary or advisable;
(in) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by 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 10 and 11;
(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 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 Xxxxxxxx Option Agreement and will continue to operate in accordance with the Commission or any national securities exchangeterms of and remain in compliance with all terms and conditions contained in the Xxxxxxxx Option Agreement.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the Effective Date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Exchange Act before termination of the offering of the Securities by the Underwriter of which the Underwriter shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Underwriter shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Rules and Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Underwriter and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order or of the initiation, or the threatening of any proceeding, suspending the effectiveness of the Registration Statement or any post-effective order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment thereto or supplement thereto, or the institution or proceeding for that purpose, (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceedings thereforproceeding for that purpose, (viv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of any notification with respect to the suspension of the qualification of the Shares Commission 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 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 Company will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or any state securities commission authority shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) 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, if applicable and if consented to by the Underwriter pursuant to Rule 424(b)(4)) 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.
(d) The Company will give the Underwriter 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 Underwriter in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Rules and Regulations), will furnish the Underwriter 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 prospectus to which the Underwriter or Xxxxxxx & Xxxxxxx ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Underwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Underwriter may reasonably designate, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Underwriter agrees that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by 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 Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriter's Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Underwriter promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be reasonably satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriter's Counsel, and the Company will promptly deliver furnish to each of the Agent such Underwriter a reasonable number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestamendment or supplement.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Rules and Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date Effective Date of the Registration Statement.
(fh) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from five years after the date hereof, the Company will notfurnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports (if requester by the Underwriter) of earnings, and will deliver to the Underwriter:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company' s principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company or their affairs which is intended for release by the Company; and
(vi) any additional information of a public nature concerning the Company, and any future subsidiary or their respective businesses which the Underwriter may reasonably request. During such five-year period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not permit so consolidated.
(i) 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.
(j) The Company will furnish to the Underwriter or on the Underwriter's order, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the Effective Date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriter may reasonably request.
(k) Except for the offering contemplated by this Agreement, for a period of 24 months from the Effective Date of the Registration Statement none of the Company, its affiliatesofficers or directors, or holders of the Company's securities, except as listed in Schedule III, including options, warrants and other like rights, prior to the Effective Date, or any person or entity deemed to be an affiliate of the Company pursuant to the Rules and Regulations, will, directly or indirectly, issue, offer to issuesell, sell, offer or agree to sell, grant any an option for the sale of, assign, transfer, pledge, make hypothecate or otherwise encumber or dispose of any short sale shares of Common Stock or maintain securities convertible into or exchangeable for or evidencing any short position, establish right to purchase or maintain a "put equivalent position" (within the meaning subscribe for any shares of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is either pursuant to be settled by delivery Rule 144 of Common Stock, other securities, cash the Rules and Regulations or other considerationotherwise) or otherwise dispose of, of any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any beneficial interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agent.
Underwriter (g) During a period of three years from the effective date "Lock-up"). On or before the Effective Date of the Registration Statement, the Company shall cause to be duly executed legally binding and enforceable agreements pursuant to which each of persons enumerated in the preceding sentence who are subject to the Lock-up, has agreed to be bound by the Lock-up. During the 36 month period commencing with the Effective Date of the Registration Statement, the Company shall issue no shares of capital stock, except shares issuable upon the exercise of options or warrants referred to in the Registration Statement, inclusive of up to an aggregate of 450,000 shares pursuant to options which may be granted under the Company's 1996 Stock Option Plan and the 1,000,000 shares held in escrow on behalf of management, or in connection with any acquisition from, or business combination with, an unaffiliated entity or securities convertible into or exchangeable for shares of Common Stock or, except in conformity and compliance with the terms of this Agreement, grant any options or warrants.
(l) None of the Company, nor any of its respective officers or directors, nor affiliates of any of them (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used directly or indirectly to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including but not limited to a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to you copies the Underwriter as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 7(j) hereof.
(p) The Company shall cause the Securities to be quoted on the SmallCap Market of the Nasdaq Stock Market at such time as the Securities are accepted for listing.
(q) For a period of three (3) years from the Closing Date, the Company shall furnish to the Underwriter at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock; (ii) a list of holders of Common Stock upon the Underwriter's reasonable requests; and (iii) a weekly listing of the securities positions of participants in the Depository Trust Company.
(r) For a period of three (3) years the Company shall notify the Underwriter of each meeting of the Board, which meetings shall be held at least quarterly. An individual selected by the Underwriter shall be permitted to attend all meetings of the Board and to receive all notices and other correspondence and communications sent by the Company to members of the Board. The Company shall reimburse the Underwriter's designee for his or her out-of-pocket expenses reasonably incurred in connection with his or her attendance of the Board meetings.
(s) For a period equal to the lesser of (i) all reports to its stockholders; seven (7) years from the date hereof, and (ii) all reportsthe sale to the public of the Warrant Shares, financial statements and proxy or information statements filed by the Company with will not take any action or actions which may prevent or disqualify the Commission Company's use of Forms S-1 or, if applicable, S-2 and S-3 (or any national securities exchangeother appropriate form) for the registration under the Act of the Warrant Shares.
(t) Intentionally omitted.
Appears in 1 contract
Samples: Underwriting Agreement (TTR Inc)
Covenants of the Company. 10.1 The Company covenants and agrees with the ------------------------ Agent thatUnderwriters that the Company:
(ia) If will promptly provide to the Registration Statement has not yet been declared effective Underwriters and their counsel, during the period commencing on the date hereof and until completion of this Agreementthe Distribution of the Units, drafts of any filings to be made with any securities exchange or regulatory body in Canada or any other jurisdiction by the Company or the Subsidiaries of information relating to the Offering or pursuant to the Company's or the Subsidiaries' continuous disclosure obligations under applicable Canadian Securities Laws for review by the Underwriters and their counsel prior to filing, and give the Underwriters and their counsel a reasonable opportunity to provide comments on such filing, subject to the Company's timely disclosure obligations under applicable Canadian Securities Laws;
(b) will use its best efforts to cause advise the Registration Statement Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, Final Prospectus 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 Supplementary Material has been used) pursuant to Rule 424(b) or Rule 434 within filed and receipts therefor from the prescribed time period Securities Commissions have been obtained and will provide evidence satisfactory to you the Underwriters of each such filing and copies of such timely filing. If receipts;
(c) will advise the Company elects Underwriters, promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission of any order suspending or preventing the use of any of the Offering Documents or suspending or seeking to rely on Rule 434, suspend the Company will prepare and file a term sheet that complies with trading of the requirements of Rule 434.
Offered Securities; (ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Offered Securities or the Compensation Options for sale Distribution in any jurisdiction of the Qualifying Jurisdictions; (iii) the institution, threatening or the initiation or threatening contemplation of any proceeding for that purpose. If any such purposes; or (iv) any requests made by any Securities Commission for amending or supplementing any of the Commission shall propose Offering Documents or enter a stop order at any timefor additional information, the Company and will use its best commercially reasonable efforts to prevent the issuance of any such stop order or any suspension respectively referred to in (i) or (ii) above and, if any such order is issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, withdrawal thereof promptly or if it shall be necessary at any time such suspension occurs, to amend or supplement the Prospectus or Registration Statement to comply promptly remedy such suspension in accordance with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.this Agreement;
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness Closing Date or Option Closing Date, as applicable, make all reasonable arrangements that are within the control of the Registration Statement, to qualify, if necessary, Company for the electronic deposit of the Common Shares for offering and sale under Warrants comprising the securities laws relating Units and Additional Securities pursuant to the offering non-certificated issue system of CDS on the Closing Date or sale Option Closing Date, as applicable. All fees and expenses payable to CDS and/or the transfer agent in connection with the electronic deposit and the fees and expenses payable to CDS in connection with the initial or additional transfers as may be required in the course of the Shares Distribution of such jurisdictions as you may designate the Units and to maintain such qualification in effect for so long as required for Additional Securities shall be borne by the distribution thereof; 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.Company;
(e) The Company will make generally available (within the meaning of Section 11(a) use its commercially reasonable efforts to remain, and to cause each of the Securities Act) Subsidiaries to its security holders and to you as soon as practicableremain, but not later than 45 days after until the end of its fiscal quarter in which the first anniversary expiry date of the effective date Warrants, a corporation validly subsisting under the laws of its jurisdiction of incorporation or amalgamation, and to be duly licensed, registered or qualified as an extra-provincial or foreign corporation or entity in all jurisdictions where the character of its properties owned or leased or the nature of the Registration Statement occursactivities conducted by it make such licensing, an earnings statement registration or qualification necessary and to carry on its business in the ordinary course and in compliance in all material respects with all applicable Laws of each such jurisdiction (in form complying with including, without limitation, Laws related to the provisions sale, production or distribution of Rule 158 cannabis), provided that the foregoing is subject to the obligations of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after directors to comply with their fiduciary duties to the effective date of the Registration Statement.Company;
(f) Other than the Company's issuance of Common Stock, will use its commercially reasonable efforts to maintain:
(i) pursuant its status as a "reporting issuer" under Canadian Securities Laws and not in default of any requirement of such Canadian Securities Laws until the expiry date of the Warrants, provided that the foregoing requirement shall not prevent the Company from completing any transaction which would result in the Company ceasing to any existing employee benefit plansbe a "reporting issuer" so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada or cash, or the holders of Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the CSE and is subject to the obligations of the directors to comply with their fiduciary duties to the Company; and
(ii) the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Underwriters may approve (acting reasonably), until the expiry date of the Warrants, provided the foregoing requirement shall not prevent the Company from completing any transaction which would result in the Company ceasing to be so listed so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada or cash, or the holders of Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the CSE and is subject to the obligations of the directors to comply with their fiduciary duties to the Company.
(g) will use its commercially reasonable efforts to ensure that the Warrants are listed and posted for trading on the CSE on the Closing Date (or as soon as reasonably practicable thereafter), subject to the Underwriters satisfying the distribution requirements of the CSE for the Warrants to be listed thereon;
(h) will apply the net proceeds from the issue and sale of the Units and the Additional Securities in accordance with the disclosure set out under the heading "Use of Proceeds" in the Final Prospectus, except for circumstances where, for sound business reasons, a reallocation of the net proceeds may be necessary;
(i) prior to the Closing Date or Option Closing Date, as the case may be, will promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to this Agreement and the transactions contemplated hereby, including to the Offering, and take all such steps as may be reasonably required within its power to implement to the full extent the provisions, and to satisfy the conditions, of this Agreement as it relates to the sale and issuance of Offered Securities;
(j) will forthwith notify the Underwriters of the breach of any covenant of this Agreement in any material respect by the Company, or upon the exercise, conversion Company becoming aware that any representation or exchange warranty of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company contained in this Agreement or any document, instrument, certificate or other agreement delivered pursuant hereto is or was untrue or inaccurate in any material respect at the time such representation or warranty was made;
(k) subject to compliance with Canadian Securities Laws, will not, and will not permit at any of its affiliates, directly or indirectly, time prior to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any Closing of the economic consequences of ownership Offering, halt the trading 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 Shares on the foregoing CSE without the prior written consent of the Agent.Lead Underwriters (on behalf of the Underwriters), such consent not to be unreasonably withheld;
(gl) During a period will use reasonable efforts to restrict its officers and directors from selling any securities of three years the Company from the effective date hereof until the Closing Date, without the prior written consent of the Underwriters (such consent not to be unreasonably withheld or delayed);
(m) will duly execute and deliver the Warrant Indenture and the Compensation Option Certificates at the Closing Time on the Closing Date and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Company;
(n) will ensure that at the Closing Time on the Closing Date or Option Closing Date, as applicable, the Warrants are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in the Warrant Indenture;
(o) will ensure that at the Closing Time on the Closing Date or Option Closing Date, as applicable, the Compensation Options are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in the Compensation Option Certificates;
(p) ensure that: (i) the Warrant Shares issuable upon the exercise of the Warrants; (ii) the Compensation Shares issuable upon the exercise of the Compensation Options; and (iii) the Compensation Warrant Shares issuable upon the exercise of the Compensation Warrants, shall, upon issuance in accordance with terms thereof and receipt by the Company of payment therefor, be duly issued as fully paid and non-assessable Common Shares;
(q) ensure that, at all times prior to the expiry date of the Registration StatementWarrants, Compensation Options and Compensation Warrants, as applicable, a sufficient number of Warrant Shares, Compensation Shares and Compensation Warrant Shares, as applicable, are allotted and reserved for issuance upon the exercise of the Warrants, Compensation Options and Compensation Warrants, as applicable;
(r) the Company and the Underwriters hereby acknowledge that the Offered Securities have not been and will not be registered under the 1933 Act or any U.S. state securities laws and may not be offered or sold to, or for the benefit or account of, any person in the United States or any U.S. person except by the Underwriters or their respective U.S. Affiliates, pursuant to Rule 144A of the 1933 Act and similar exemptions under applicable U.S. state securities laws, and may be sold outside the United States to non-U.S. persons pursuant to Rule 903 of Regulation S under the 1933 Act. Accordingly, the Company will furnish and each of the Underwriters hereby agree that offers and sales of the Offered Securities to, or for the benefit or account of, any person in the United States or any U.S. person shall be conducted only in the manner specified in Schedule "A" hereto, which terms and conditions are hereby incorporated by reference in and form a part of this Agreement;
(s) will, prior to you copies the Closing Date or Option Closing Date, as the case may be, make available management of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed the Company for meetings with investors as scheduled by the Underwriters at the discretion of the Underwriters acting reasonably; and
(t) will use commercially reasonable efforts to cause each director and senior officer of the Company with to deliver to the Commission Underwriters, at or any national securities exchangeprior to the Closing Time, an executed Lock-Up Agreement.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Company. The Company covenants and agrees with ------------------------ each of the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you the Underwriters immediately (and, if requested by youthe Underwriters, will confirm such notice in writing)
(i) when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of or supplement to the Registration Statement or the ProspectusProspectus or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be delivered under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any post-effective amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement Securities Act Regulations) to which you the Underwriters or Underwriters' Counsel (as hereinafter defined) shall reasonably object in writing after being timely furnished in advance object, will furnish the Underwriters with copies of any such amendment or supplement a copy thereofreasonable 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 the Underwriters or counsel for the Underwriters shall reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent Underwriters or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Underwriters) which will correct such statement or omission and or which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possibleeffect such compliance.
(c) The Company will promptly deliver has delivered to you two the Underwriters a signed copies copy of the Registration StatementStatement as originally filed, including exhibits exhibits, and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters, from time to time during the period that the Prospectus is required to be delivered under the Securities Act, such number of copies of any preliminary prospectus, the Prospectus, Prospectus and the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriters 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 occursoccurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), 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 StatementStatement (as defined in Rule 158(c) under the Securities Act).
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 days from the date hereofof the Prospectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issuewithout the prior written consent of Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, offer, sell, offer or agree contract to sell, grant any option for the sale ofto purchase, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) pledge or otherwise dispose of(or announce any offer, sale, contract to sell, grant of an option to purchase, pledge or other disposition) of any shares of Common Stock (of the Company or any securities convertible into, into or exercisable for or exchangeable for such Common Stock, except that the Company may issue (i) shares of Common Stock and options to purchase Common Stock under its 1998 Shares Award Plan and Employee Stock Purchase Plan, (ii) shares of Common Stock upon exercise of warrants to purchase Common Stock or any interest therein or announce any intention to do any conversion of notes and other convertible securities that were issued and outstanding on the date of the foregoing without the prior written consent Prospectus or (iii) shares of Common Stock in connection with strategic relationships and acquisitions of businesses, technologies and products complementary to those of the AgentCompany, so long as the recipients of such shares with respect to clause (iii) agree to be bound by a lock-up agreement substantially in the form of Exhibit C hereto (which shall provide that any --------- transferees and assigns of such recipients shall be bound by the lock-up agreement) for the remainder of the 90-day lock-up period.
(g) During a period of three years from the effective date of the Registration StatementProspectus, the Company will furnish to you the Underwriters copies of (i) all reports to its stockholders; 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 proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., New York City time, on the date of this Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Xm Satellite Radio Holdings Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Exchange Act: (i) before termination of the offering of the Securities by the Underwriter which the Underwriter shall not previously have been advised and if Rule 430A furnished with a copy; or (ii) to which the Underwriter shall have objected; or (iii) which is used not in compliance with the Act, the Exchange Act or the filing of Rules and Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period Underwriter 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.
(ii) The Company will notify you immediately (and, if requested confirm by you, will confirm such notice in writing)
: (i) when the Registration Statement and any amendments thereto become Statement, as amended, becomes effective, (ii) 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 and when any request by the Commission for any post-effective amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, becomes effective; (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivii) of the issuance by the Commission of any stop order or of the initiation, or the threatening of any proceeding, suspending the effectiveness of the Registration Statement or any post-effective order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment thereto or supplement thereto, or the institution or proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceedings therefor, proceeding for that purpose; (viv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of any notification with respect to the suspension of the qualification of the Shares Commission 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 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including or for additional information. If the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before Commission or after the effective date of the Registration Statement to which you any state securities commission or regulatory authority shall reasonably object in writing after being timely furnished in advance enter a copy thereof.
(b) If stop order or suspend such qualification at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 Regulationstime, the Company will notify you make every reasonable effort to obtain promptly and 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares lifting of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processorder.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Anthra Pharmaceuticals Inc)
Covenants of the Company. (a) The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto thereto, to become effective as promptly as possible, and if Rule 430A is used or the filing of . The Company shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Representatives and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time period and will provide evidence satisfactory to you of such timely filing. If as may be required by the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Rules.
(ii) The Company will notify you immediately shall promptly advise the Representatives in writing (and, if requested by you, will confirm such notice in writing)
(iA) when any post-effective amendment to the Registration Statement and shall have become effective or any amendments thereto become effectivesupplement to the Prospectus shall have been filed, (iiB) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of the initiation, any preliminary prospectus or the threatening, institution or threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose and (viD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not file any amendment of the Commission shall propose Registration Statement or enter a stop order at supplement to the Prospectus or any time, document incorporated by reference in the Registration Statement unless the Company will has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(biii) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, therein in the light of the circumstances under which they were made, made 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of paragraph (ii) of this Section 5(a), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and will use its best efforts to have any amendment to the Registration Statement declared effective Representatives as soon as possiblepracticable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(cv) The Company will promptly deliver shall furnish to you two the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement, Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments theretothereof and, and so long as delivery of a prospectus by an Underwriter or dealer may be required by the Company will promptly deliver to each of Securities Act or the Agent such number of Rules, as many copies of any preliminary prospectus, prospectus and the Prospectus, the Registration Statement, Prospectus and all any amendments of thereof and supplements to such documents, if any, thereto as you the Representatives may reasonably request.. If applicable, the copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(dvi) The Company will endeavor shall cooperate with the Representatives and their counsel in good faith, in cooperation with you, at or prior endeavoring to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Representatives may designate and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(evii) The Company will make generally available (within Company, during the meaning of Section 11(a) of period when the Securities Act) Prospectus is required 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 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated be delivered under the Securities Act which is exempt from registration under and the Securities Rules or the Exchange Act, during will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets Corp., for a period of 90 180 days from after the date hereofof this Agreement, the Company will not, and will not permit any each of its affiliatesindividual directors and executive officers shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any equity securities 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 Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plan or bonus plan as described in the 24 Registration Statement and the Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable during such 180 day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this Agreement, such person will not, without the prior written consent of CIBC World Markets Corp., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(ix) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq National Market (including any interest therein required registration under the Exchange Act).
(x) Prior to the Closing Date, the Company will issue no press release or announce any intention other communications directly or indirectly and hold no press conference with respect to do the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the foregoing offering of the Shares without the prior written consent of the AgentRepresentatives unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(gxi) During a period of three years The Company will apply the net proceeds from the effective date offering of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration StatementStatement including all exhibits thereto, each preliminary prospectus, the Company will furnish Prospectus, all amendments and supplements to you the Registration Statement and the Prospectus and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 5(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in connection with its review of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters. Subject to the provisions of Section 8, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriters.
(c) The Selling Stockholders, severally, and not jointly, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) all reports any stamp duties, capital duties and stock transfer taxes, if any, payable upon the sale of the Shares to its stockholders; the Underwriters, and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) all reports, financial statements the fees and proxy or information statements filed by the Company with the Commission or any national securities exchangedisbursements of their respective counsel and accountants.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees Mercxx Xxxual covenant with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 Mercxx Xxxual will prepare and file a term sheet that complies such amendments or supplements to the Registration Statement, the Prospectus, the Conversion Application and the Proxy Statement as may hereafter be required by the Securities Act Regulations or the Conversion Act or as may hereafter be requested by the Agent. Following completion of the Offerings, the Company and Mercxx Xxxual will promptly prepare and file with the requirements Commission a post-effective amendment to the Registration Statement relating to the results of Rule 434.
the updated valuation of Mercxx Xxxual prepared by Alex Xxxxxxxxxx & Xo. The Company and Mercxx Xxxual will notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement, the filing of any supplement to the Prospectus and the filing of any amendment to the Conversion Application, (ii) The Company will notify you immediately (and, if requested of the receipt of any comments from the Department or the Commission with respect to the transactions contemplated by you, will confirm such notice in writing)
(i) when this Agreement or the Registration Statement and any amendments thereto become effectivePlan, (iiiii) of any request by the Commission or the Department for any amendment of or supplement to the Registration Statement or the Conversion Application or any amendment or supplement to the Prospectus or for any additional information, (iiiiv) of the mailing issuance by the Department of any order suspending the Offerings or the delivery to use of the Commission for filing Prospectus or the initiation of any amendment of or supplement to the Registration Statement or the Prospectusproceedings for that purpose, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification notice with respect to the suspension of the any qualification of the Shares Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that purposejurisdiction. If the Commission shall propose or enter a stop order at any time, the The Company and Mercxx Xxxual 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 the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file thereof at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofearliest possible moment.
(b) If at The Company and Mercxx Xxxual will give the Agent notice of its intention to file or prepare any time when a prospectus relating amendment to the Shares Conversion Application or Registration Statement (including
(c) The Company and Mercxx Xxxual will deliver to the Agent as many signed copies and as many conformed copies of the Conversion Application and the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Agent may reasonably request, and from time to time such number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered under delivered, the Company and Mercxx Xxxual will comply, at their own expense, with all requirements imposed upon them by the Department, by the ConversionAct, as from time to time in force, and by the Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(e) If any event or circumstance shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Agent circumstances existing at the time it is delivered to a purchaser, the Company and Mercxx Xxxual will forthwith amend or supplement the CompanyProspectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company and Mercxx Xxxual will promptly deliver furnish to each of the Agent such a reasonable number of copies of any preliminary prospectussuch amendment or supplement. For the purpose of this subsection, the Prospectus, Company and Mercxx Xxxual will each furnish such information with respect to itself as the Registration Statement, and all amendments of and supplements Agent may from time to such documents, if any, as you may time reasonably request.
(df) The Company and Mercxx Xxxual will endeavor in good faithtake all necessary action, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementAgent, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states of the Shares of such United States and other jurisdictions as you may designate be required and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall Agent and the Company have agreed; provided, however, that the Company and Mercxx Xxxual shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company and Mercxx Xxxual will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eg) The Company authorizes Sandler O'Nexxx xxx any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its shareholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and consolidated statements of income, shareholders' equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the Mercxx Xxxpanies for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to shareholders of the Company.
(fj) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 days from ending on the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any third anniversary of the economic consequences of ownership expiration 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 fiscal year during which the closing of the foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statementtransactions contemplated hereby occurs, the Company will furnish to you copies of the Agent (i) all reports as soon as publicly available, a copy of each report or other document of the Company furnished generally to its stockholders; shareholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from time to time, such other information concerning the Company as the Agent may reasonably request.
(k) The Company and Mercxx Xxxual will conduct the Conversion in all reportsmaterial respects in accordance with the Plan, financial statements the Conversion Act and proxy all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or information statements filed Mercxx Xxxual by the Department.
(l) The Company and Mercxx Xxxual will use the net proceeds received from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(m) The Company will file with the Commission such reports on Form SR as may be required pursuant to Rule 463 of the Securities Act Regulations, if such report or any national securities exchangesubstantially similar report is required by the SEC.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach U.S. Underwriter as follows:
(ia) If As soon as the Registration Statement has not yet been declared effective on Company is advised or otherwise obtains knowledge of any of the date of this Agreementfollowing, the Company will use its best efforts to cause promptly notify the Representatives of (i) the effectiveness of the Registration Statement and any amendments amendment thereto to become (including any post-effective as promptly as possibleamendments), 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the receipt of any comments from the Commission relating to the Registration Statement and any amendments thereto become effectivethe Prospectus, (iiiii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of order preventing or suspending the receipt use of any comments from the Commission and (vi) of the receipt by the Company of any notification with respect to preliminary prospectus or the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction or the initiation or threatening threat of any proceeding proceedings for that purposethese purposes. If the Commission shall propose or enter a stop order at any time, the 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 the lifting of such order as soon as possible. thereof at the earliest possible moment.
(b) The Company will not give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment), any Rule 462(b) Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus) which the Company proposes for use by the U.S. Underwriters in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations or any Term Sheet. The Company will furnish the Representatives 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 the Representatives or counsel for the U.S. Underwriters reasonably shall object.
(c) The Company will deliver to the Representatives, as soon as possible, as many signed and conformed copies of the Registration Statement before as originally filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated by reference therein) as the effective date of the Registration Statement to which you shall Representatives reasonably object in writing after being timely furnished in advance a copy thereofmay request.
(bd) If at any The Company will furnish to each U.S. Underwriter, from time to time during the period when a prospectus relating to the Shares Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such U.S. Underwriter reasonably may request for the purposes contemplated by the 1933 Act or the applicable rules and regulations of the Commission thereunder.
(e) If any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the U.S. Underwriters, to amend or supplement the Prospectus in order to comply with the 1933 Act or the 1934 Act or to make the Prospectus not misleading in the light of the Agent circumstances existing at the time it is delivered to a purchaser, the Company forthwith will amend or supplement the CompanyProspectus (in form and substance reasonably satisfactory to counsel for the U.S. Underwriters) so that, as so amended or supplemented, the Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, 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, ; and the Company will notify you promptly and prepare and file with furnish to the Commission an appropriate U.S. Underwriters a reasonable number of copies of such 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 Registration Statement declared effective as soon as possiblesupplement.
(cf) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithendeavor, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementU.S. Underwriters, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating of such states and other United States or foreign jurisdictions as the Representatives may reasonably designate; provided, however, the Company will not be required to qualify as a foreign corporation, file a general consent to service of process in any such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject, or provide any undertaking or make any change in its charter, certificate of incorporation, by-laws or other governing document that the Board of Directors of the Company reasonably determines to be contrary to the offering or sale best interests of the Shares Company and its shareholders. In each jurisdiction in which the Securities have been so qualified, the Company will use all reasonable efforts to file such statements and reports as may be required by the laws of such jurisdictions as you may designate and jurisdiction to maintain continue such qualification in effect for so long a period as required the Representatives reasonably may request for the distribution thereof; except that in no event shall of the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processSecurities.
(eg) The Company will make generally available (within the 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 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursCompany's fiscal year, an earnings statement (in form and in a manner complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of at least twelve consecutive months beginning after the Company's fiscal quarter next following the "effective date date" (as defined in said Rule 158) of the Registration Statement.
(fh) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, the Securities in the manner specified in the Prospectus under "Use of Pro- ceeds."
(i) pursuant If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434 of the 1933 Act Regulations, then immediately following the execution of the U.S. Pricing Agreement, the Company will prepare and file with the Commission in accordance with such Rule 430A and/or Rule 434 and Rule 424(b) of the 1933 Act Regulations copies of an amended Prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to any existing employee benefit plansthe Registration Statement (including an amended Prospectus), (iicontaining all information so omitted. If required, the Company will prepare and file or transmit for filing a Rule 462(b) upon Registration Statement not later than the exercisedate of execution of the U.S. Pricing Agreement. If a Rule 462(b) Registration Statement is filed by the Company, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereofthe Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission as required by Rule 111 of the 1933 Act Regulations.
(ivj) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of 90 the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) The Company will use its reasonable efforts to maintain the listing of the Securities on the New York Stock Exchange.
(l) During a period 180 days from the date hereofClosing Time, the Company will not, and will not permit any without the prior written consent of its affiliatesMerrxxx Xxxcx, directly xxrectly or indirectly, to issue, sell, offer or agree to sell, transfer, pledge, hypothecate, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of the Common Stock, except for (i) Securities to be sold to the U.S. Underwriters, (ii) the award of options or other rights or the issuance of Common Stock pursuant to employee and director stock purchase, equity incentive and option plans as described in the Prospectus, (iii) the issuance of Common Stock (whether upon conversion, exchange or otherwise) in connection with an acquisition, whether by purchase of assets, merger or other form of business acquisition or combination transaction, provided that the foregoing restrictions apply to the issued Common Stock, or (iv) the adoption of a shareholder rights plan.
(m) During a period of [THREE] years from the Closing Time, the Company or any securities convertible intopartnership affiliated with the Company will not, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of Merrxxx Xxxcx, xxive or assign any options or rights granted to the AgentCompany in relation to the Company's acquisition of Equity Inns, including, but not limited to, any right of first offer to purchase or manage any property.
(gn) During a period of three years from the effective date of the Registration StatementClosing Time, the Company will furnish deliver to you Merrxxx Xxxcx, xx behalf of the Representatives promptly upon their being mailed or filed, copies of (i) all current, regular and periodic reports of the Company mailed to its stockholders; and (ii) all reports, financial statements and proxy sharehold- ers or information statements filed by with the Company New York Stock Exchange or with the Commission or any national governmental authority succeeding to any of the Commission's functions other than reports on Form 3 or Form 4 or registration statements on Form S-8.
(o) The Company hereby agrees that it will ensure that the Reserved Securities will be restricted as required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. The U.S. Underwriters will notify the Company as to which persons will need to be so restricted. At the request of the U.S. Underwriters, the Company will direct the transfer agent to place a stop transfer restriction upon such securities exchangefor such period of time. Should the Company release, or seek to release, from such restrictions any of the Reserved Securities, the Company agrees to reimburse the U.S. Underwriters for any reasonable expenses (including, without limitation, legal expenses) they incur in connection with such release.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (andthe Underwriter immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment to any Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of to any Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to any Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to any Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriter notice of its intention to file or prepare any post-effective amendment thereto to any Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriter in connection with the offering of the initiation, or Securities which differs from the threatening, of any proceedings therefor, (vProspectus filed with the Commission pursuant to Rule 424(b) of the receipt 1933 Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of any comments 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 the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has delivered to the Underwriter one signed copy of each Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and will also deliver to the Underwriter as many conformed copies of the Registration Statements as originally filed and of each amendment thereto (without exhibits) as the Underwriter may reasonably request.
(d) The Company will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to the Underwriter and counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriter a reasonable number of copies of such amendment or supplement.
(vif) The Company will endeavor, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required by applicable law. The Company will promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for sale in any state or jurisdiction or the initiation initiating or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(eg) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby (or 120 days in the case of the Registration Statement occursclose of the Company's fiscal year), an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve month period of at least twelve consecutive months beginning after not later than the effective date first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Current Registration Statement.
(fh) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, the Securities in the manner to be specified in the Prospectus Supplement under "Use of Proceeds".
(i) pursuant to any existing employee benefit plansImmediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (iithe "Prospectus Supplement"), containing the terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Underwriter and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with such Rule 424(b) upon of the exercise, conversion or exchange 1933 Act Regulations copies of any currently outstanding stock options or warrants, the Prospectus (iiiincluding such Prospectus Supplement).
(j) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of 90 days the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all reports and communications delivered to the Company's stockholders or to holders of the Securities as a class and will also furnish copies of all reports (excluding exhibits) filed with the Commission on forms 8-K, 10-Q and 10-K, and all other reports and information furnished to its stockholders generally, not later than the time such reports are first furnished to its stockholders generally.
(k) During a period from the date hereofof this Agreement through December 31, 1996, the Company will not, and will not permit any of its affiliateswithout the Underwriter's prior written consent, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (debt securities or any securities convertible into, into or exchangeable or exercisable for or exchangeable any debt securities (except for Common Stock) or any interest therein or announce any intention the Securities sold to do any of the Underwriter pursuant to this Agreement); provided that the foregoing without shall not prevent the prior written consent of Company from making borrowings under the AgentLoan Agreement or under bank credit lines.
(gl) During a period In accordance with the Cuba Act and without limitation to the provisions of three years from the effective date of the Registration StatementSections 6 and 7 hereof, the Company will furnish agrees to you copies indemnify and hold harmless the Underwriter from and against any and all loss, liability, claim, damage and expense whatsoever (including fees and disbursements of (i) all reports to its stockholders; and (ii) all reportscounsel), financial statements and proxy or information statements filed as incurred, arising out of any violation by the Company with of the Commission or any national securities exchangeCuba Act.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(ia) If In connection with the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 offering 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 434Securities, the Company will prepare a Prospectus Supplement setting forth the principal amount of the Securities covered thereby and file a term sheet that complies their terms not otherwise specified in the Indenture, the names of the Underwriters and the principal amount of the Securities which each severally has agreed to purchase, the name of the Representatives, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as the Representatives and the Company deem appropriate in connection with the requirements offering of the Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 434424 of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement and the Prospectus as the Representatives shall reasonably request.
(iib) The Company will notify you immediately (andthe Representatives promptly, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment supplement to the Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference into the Prospectus or the Registration Statement, (iii) of or supplement the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto order preventing or suspending the use of the initiation, any Prospectus or the threatening, initiation of any proceedings thereforfor any such purpose, (v) of the 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 Shares Securities for offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding proceedings for that purposesuch purpose of which the Company becomes aware. If the Commission shall propose or enter a stop order at any time, the The Company will use its best all reasonable efforts to prevent the issuance of any such stop order or any order preventing or suspending the use of any Prospectus or suspending such qualification, and, if issuedin the event of the issuance of a stop order or any order preventing or suspending the use of any Prospectus or suspending such qualifications, to use all reasonable efforts to promptly obtain the lifting of such order as soon as possible. thereof.
(c) The Company will not give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed Prospectus, whether pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at 1933 Act, the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 1934 Act or otherwise, will furnish the Securities Act Regulations, the Company will notify you promptly and prepare and file Representatives with the Commission an appropriate copies of any such amendment or supplement (in form and substance satisfactory within a reasonable amount of time prior to you) which will correct such statement or omission proposed filing, and will use its best efforts not file any such amendment or supplement to have any amendment to which the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of Representatives or counsel for the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may Underwriters shall reasonably requestobject.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior deliver to the time of effectiveness Representatives five signed copies of the Registration Statement, Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to qualify, if necessary, be incorporated by reference therein) and as many conformed copies as the Shares for offering Representatives may reasonably request and sale under the securities laws relating will also deliver to the offering or sale Representatives a conformed copy of the Shares Registration Statement as originally filed and of such jurisdictions as you may designate and to maintain such qualification in effect each amendment thereto (without exhibits) for so long as required for each of the distribution thereof; 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 processUnderwriters.
(e) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the 1933 Act or the 1934 Act or the respective rules and regulations thereunder, the Company will forthwith amend the Registration Statement or supplement the Prospectus, as the case may be (in form and substance reasonably satisfactory to counsel for the Underwriters), so as to correct such statement or omission or effect such compliance and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any jurisdiction. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement.
(h) The Company will make generally available (within the 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 50 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months beginning after the Company's fiscal quarter next following the "effective date date" (as defined in said Rule 158) of the Registration StatementStatement relating to such Securities.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon The Company will use the exercise, conversion or exchange net proceeds received by it from the sale of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration in the manner specified in the Prospectus under "Use of Proceeds."
(j) The Company will effect the listing of the Securities Acton the exchanges, during if any, specified in Schedule II.
(k) Until the period of 90 days from business day following the Closing Time or such other date hereofas may be specified in Schedule II, the Company will not, and will not permit any of its affiliateswithout the Representatives' prior written consent, directly or indirectly, to issue, sell, offer to sell or agree to sell, grant any option for announce the sale offering of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (debt securities of the Company covered by the Registration Statement or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do any of other registration statement filed under the foregoing without the prior written consent of the Agent1933 Act.
(gl) During a The Company, during the period of three years from when the effective date of Prospectus is required to be delivered under the Registration Statement1933 Act or the 1934 Act, the Company will furnish file all documents required to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements be filed by the Company with the Commission pursuant to Section 13, 14 or any national securities exchange15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
Appears in 1 contract
Covenants of the Company. The In further consideration of the agreements of the Placement Agent contained herein, the Company covenants and agrees with the ------------------------ Agent Placement Agent, as of the date hereof, that:
(ia) If The Company will file the Registration Statement has not yet been declared effective on Prospectus with the Commission within the time period specified by Rule 424(b) and will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Agreement, the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and the Company will 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 furnish copies of the Lane Capital Markets, LLC June 30, 2005 Page 15 Prospectus is otherwise required under Rule 424(bto the Placement Agent in such quantities as the Placement Agent may reasonably request.
(b) or Rule 434[reserved]
(c) Prior to the termination of the offering of the Shares, the Company will not file any amendment to the Registration Statement or supplement to the Prospectus (properly completed if Rule 430A unless the Company has been used) pursuant furnished the Placement Agent with a copy of any such amendment or supplement for the Placement Agent’s review prior to Rule 424(b) or Rule 434 within the prescribed time period filing and will provide evidence satisfactory not file any such amendment or supplement to you of such timely filingwhich the Placement Agent reasonably objects. 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 you immediately (and, if requested by you, will confirm such notice in writing)
promptly advise the Placement Agent (i) when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement and any amendments thereto become shall have been filed or becomes effective, (iiiii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or the receipt of comments from the Commission relating to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to other request by the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectusadditional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any post-effective amendment thereto or of the initiation, Preliminary Prospectus or the threatening, Prospectus or the initiation or threatening of any proceedings therefor, proceeding for such purpose and (v) of the Company’s 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 Shares for sale in any jurisdiction or the initiation institution or threatening threat of institution of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as promptly as possible the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(bd) If The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act Act, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend the Registration Statement or supplement the Prospectus or Registration Statement in order to comply with the Securities Act or the Securities Act Regulationsrules thereunder, the Company will promptly (i) notify you promptly and the Placement Agent of any such event, (ii) prepare and file with the Commission Commission, subject to paragraph (a) of this Section 6, an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission or effect such compliance and (iii) supply to the Placement Agent any such amendment or supplement in such quantities as the Placement Agent may reasonably request. Notwithstanding the foregoing, in the event that such amendment or supplement is required because of a change of information relating to the Placement Agent or the plan of distribution described in the Prospectus, the Placement Agent will promptly notify the Company of such event in order to permit the Company to prepare and file such amendment or supplement as set forth above. Lane Capital Markets, LLC June 30, 2005 Page 16
(e) As soon as practicable, the Company will make generally available to its security holders and to the Placement Agent an earnings statement or statements of the Company which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder.
(f) The Company will use its best efforts to maintain the quotation of the Shares on Nasdaq and will file with Nasdaq all documents and notices required by Nasdaq of companies that have any amendment to securities that are traded in the Registration Statement declared effective as soon as possibleover-the-counter market and quotations for which are reported by Nasdaq.
(cg) The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Common Stock.
(h) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualifyarrange, if necessary, for the qualification of the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Placement Agent may designate reasonably request and to will maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company be obligated to (i) qualify to do business in connection therewith to qualify as a foreign corporation any jurisdiction where it is not now so qualified or to execute a general consent (ii) take any action that would subject it to service of processprocess 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.
(ei) [reserved]
(j) The Company will make generally available comply with all (within i) securities and other applicable Federal laws, rules and regulations, including, without limitation, the meaning of Section 11(a) of Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Securities Act) Company’s directors and officers, in their capacities as such, to its security holders comply with such laws, rules and to you as soon as practicableregulations, 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 occursincluding, an earnings statement (in form complying with without limitation, the provisions of Rule 158 the Sxxxxxxx-Xxxxx Act and (ii) securities and other applicable state, local and foreign laws, rules and regulations, except where the failure to comply with such securities and other applicable state, local or foreign laws, rules and/or regulations could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statementbusiness.
(fk) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the The Company will not, and will not permit any of its affiliatestake, directly or indirectly, any action designed to issueor that would constitute or that might reasonably be expected to cause or result in, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act)Act or otherwise, enter into any swap, derivative transaction stabilization or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences of ownership price 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 foregoing without the prior written consent of the AgentShares.
(gl) During a period of three years The Company will apply the net proceeds from the effective date sale of the Shares as described in the Prospectus under the heading “Use of Proceeds”.
(m) [reserved] Lane Capital Markets, LLC June 30, 2005 Page 17 (n) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or supplement to any of them, (ii) the printing (or reproduction) and delivery to the Placement Agent or to a distribution center designated by the Placement Agent (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested by the Placement Agent for use in connection with the offering and sale of the Shares, (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares, (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares, (v) the registration of the Shares under the Exchange Act and the listing of the Shares on Nasdaq, (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of one counsel for the Placement Agent relating to such registration and qualification), (vii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of one counsel for the Placement Agent relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company will furnish representatives in connection with presentations to you copies prospective purchasers of the Shares, (iix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company, (x) all reports to its stockholders; out-of-pocket expenses of the Placement Agent (including reasonable fees and disbursements of one counsel) which in the aggregate shall not exceed $20,000, whether or not such purchase and sale is completed and (iixi) all reportsother costs and expenses incident to the Company’s performance of its obligations hereunder. Lane Capital Markets, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.LLC June 30, 2005 Page 18
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(a) The Company will (i) If prepare and timely file with the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 Commission under Rule 424(b) a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A and (ii) not file any amendment to the Registration Statement or Rule 434, the Company will file supplement to the Prospectus (properly completed if Rule 430A has of which you shall not previously have been used) pursuant advised and furnished with a copy or to Rule 424(b) which you shall have reasonably objected in writing 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 which is not in compliance with the requirements Securities Act or the rules and regulations of Rule 434the Commission.
(iib) The Company will promptly notify you immediately (and, if requested by you, will confirm such notice each Underwriter in writing)
the event of (i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or for supplement to the Prospectus or for any additional information, (iiiii) of the mailing or the delivery to the Commission for filing 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 Registration Statement Statement, (iii) the institution or any post-effective amendment thereto or notice of the initiation, or the threatening, intended institution of any proceedings thereforaction or proceeding for that purpose, (viv) of the 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 Shares shares for sale in any jurisdiction jurisdiction, or (v) the receipt by it of notice of the initiation or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the 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 the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file withdrawal thereof at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possibleearliest possible moment.
(c) The Company will promptly (i) on or before the Closing Date, deliver to you two a signed copies copy of the Registration Statement, including exhibits Statement as originally filed and all amendments thereto, and of each amendment thereto filed prior to the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, time the Registration StatementStatement becomes effective and, and all amendments promptly upon the filing thereof, a signed copy of and supplements to such documentseach post- effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (ii) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Prospectus as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt thereafter from registration under the Securities Act, time to time during the period of 90 days from in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any Underwriters as many additional copies 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you Prospectus and as many copies of (i) all reports any supplement to its stockholders; the Prospectus and (ii) all reportsof any amended prospectus, financial statements and proxy or information statements filed by the Company with the Commission Commission, as you may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any national securities exchange.event relating to or affecting the Company, or of which the Company shall be advised in writing by you, shall occur as a result of which it is necessary, in the opinion of counsel for the Company or of counsel for the Underwriters, to supplement or amend the
Appears in 1 contract
Samples: Underwriting Agreement (Zonagen Inc)
Covenants of the Company. The Company covenants and agrees with ------------------------ the ------------------------ Agent Underwriters that:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-post- effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments regarding the Registration Statement or any post-effective amendment from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) after the effective date of the Registration Statement that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, Company 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two four signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings earning 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) Other During the period of 180 days from the date of the Prospectus, the Company will not, without your prior written consent, issue, sell, offer or agree to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock), other than (i) the Company's sale of Shares hereunder, (ii) the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) Stock upon the exercise, conversion or exchange exercise of any currently presently outstanding stock options or warrantsoptions, (iii) in exchange for shares grants of MGV Energystock options and other awards pursuant to the Company's 1996 Stock Option and Grant Plan (and issuances of Common Stock upon the exercise of such awards), Inc. currently held by minority shareholders thereof, or (iv) sales of shares of Common Stock pursuant to the 1997 Employee Stock Purchase Plan and (v) shares to be issued in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Actconnection with Company acquisitions, during the period of 90 days from the date hereofif any. In addition, the Company will not, and will not permit any obtain the undertaking of each of its affiliates, directly or indirectly, officers and directors and such of its stockholders as have been heretofore designated by you and listed on Schedule III attached hereto not to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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, directly or indirectly, 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 foregoing ), without the your prior written consent during the period of 180 days from the date of the AgentProspectus, other than (i) the sale of Shares by the Selling Stockholders hereunder, (ii) pursuant to a bona fide gift, (iii) by will or the laws of descent and distribution or (iv) to the Company.
(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 stockholders; 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 proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be approved for listing on the Nasdaq National Market.
(j) The Company will file with the Commission such reports on Form SR as may be required pursuant to Rule 463 of the Regulations.
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Boron Lepore & Associates Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:
Underwriter as follows: Compliance with Securities Regulations. During the period that a Prospectus relating to the Securities is required to be delivered under the 1933 Act (iwhether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) If (the Registration Statement has not yet been declared effective on "Prospectus Delivery Period") the date of this AgreementCompany, subject to Section 3(b), will notify the Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possibleUnderwriter immediately, and if Rule 430A is used or confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when any post-effective amendment to the Registration Statement shall be filed and any amendments thereto become effective, or any supplement to the Preliminary Prospectus, Permitted Free Writing Prospectus, or the Prospectus or any amended preliminary prospectus, Permitted Free Writing Prospectus or Prospectus shall have been filed, (ii) of any request by notice from the Commission for any amendment that it objects to the use of or supplement to the Registration Statement or the Prospectus or for any additional informationas an automatic shelf registration statement, and (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any preliminary prospectus, any Permitted Free Writing Prospectus or the Prospectus, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for that purposeany of such purposes. If The Company will promptly effect the filings necessary pursuant to Rule 424(b) and Rule 433 and will take such steps as it deems necessary to ascertain promptly whether a form of prospectus transmitted for filing under Rule 424(b) and Rule 433 was received for filing by the Commission shall propose or enter a stop order at any timeand, in the event that it was not, it will promptly file such prospectus. 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 the lifting of such order as soon as possiblethereof at the earliest possible moment. The Underwriter shall promptly notify the Company will not file any amendment to the Registration Statement or any amendment upon termination of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofDelivery Period.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when prepare and timely file with the Commission under 424(b) a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A and any amendments thereto become effective, (ii) of any request by not file with the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus (A) of which the Underwriters shall not previously have been advised and furnished with a copy a reasonable period of time prior to the proposed filing and as to which filing the Underwriters shall not have given their consent or (B) which is not in compliance with the Act or the rules and regulations of the Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Underwriters (i) of any request made by the Commission for amendment of the Registration Statement, for supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiationStatement, or the threatening, institution or threat of any proceedings thereforaction, investigation or proceeding for that purpose, or (viii) of the 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 Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the The 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 or withdrawal thereof as soon as possible. .
(c) The Company will not file (i) on or before the Closing Date, deliver to the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any amendment to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriter), (ii) as promptly as possible deliver to the Underwriters, at such office as the Underwriters may designate, as many copies of the Prospectus as the Underwriters may reasonably request, and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any amendment of or supplement to the Prospectus (including and of any amended prospectus, filed by the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from Company with the prospectus on file at Commission, as the time of Underwriters may reasonably request for the effectiveness of purposes contemplated by the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofAct.
(bd) If at any time when during the period in which a prospectus relating to the Shares is required by law to be delivered under the Securities Act by an Underwriter or dealer any event relating to or affecting the Company, or of which the Company shall have occurred be advised by in writing by the Underwriters, shall occur as a result of which it is necessary, in the opinion of counsel for the Company or of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as then so supplemented or amended or supplemented would, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madeexisting at the time such Prospectus is delivered to such purchaser, not misleading. If, after the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of the offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it shall be necessary at any time to amend in the opinion either of counsel for the Company or supplement of counsel for the Underwriters such proposed variation requires that the Prospectus be supplemented or Registration Statement to comply with the Securities Act or the Securities Act Regulationsamended, the Company will notify you promptly and forthwith prepare and file with the Commission a supplement to the Prospectus or an appropriate amendment amended prospectus setting forth such variation. The Company authorizes the Underwriters and all dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or supplement supplemented, in connection with the sale of the Shares in accordance with the applicable provisions of the Act and the applicable rules and regulations thereunder for such period.
(in form and substance satisfactory e) Prior to the filing thereof with the Commission, the Company will submit to you) which will correct such statement or omission and will use its best efforts to have , for your information, a copy of any post-effective amendment to the Registration Statement declared effective as soon as possibleand any supplement to the Prospectus or any amended prospectus proposed to be filed.
(cf) The Company will promptly deliver to you two signed copies of the Registration Statementcooperate, including exhibits when and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithrequested by you, in cooperation with you, at or prior to the time qualification of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering offer and sale under the securities or blue sky laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and and, during the period in which a prospectus is required by law to maintain be delivered by an Underwriter or a dealer, in keeping such qualification qualifications in effect for so long as required for the distribution thereofgood standing under said securities or blue sky laws; except provided, however, that in no event shall the Company shall not be obligated in connection therewith required to qualify as a foreign corporation or to execute a file any general consent to service of processprocess in any jurisdiction in which it is not so qualified. The Company will from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for distribution of the Shares.
(eg) The Company will make generally available agrees to pay all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including, without limitation, all costs and expenses incident to (within i) the meaning preparation, printing and filing with the Commission and the NASD of Section 11(athe Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the furnishing to the Underwriters of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 6 to be so furnished, (iii) the Securities Actprinting of this Agreement and related documents delivered to the Underwriters, (iv) the preparation, printing and filing of all supplements and amendments to its security holders and the Prospectus referred to in paragraph (d) of this Section 6, (v) the furnishing to you as of the reports and information referred to in paragraph (j) of this Section 6, and (vi) the printing and issuance of stock certificates, including the transfer agent's fees.
(h) The Company agrees to reimburse you, for the account of the several Underwriters, for blue sky fees and related disbursements (including counsel fees and disbursements and cost of printing memoranda for the Underwriters) paid by or for the account of the Underwriters or their counsel in qualifying the Shares under state securities or blue sky laws and in the review of the offering by the NASD.
(i) As soon as practicable, but in any event not later than 45 days after the end of its the first fiscal quarter in which first occurring after the first anniversary date of the effective date Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the Registration Statement occurs, rules and regulations promulgated under the Act an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act Regulationsand Rule 158(a) covering of the rules and regulations promulgated thereunder.
(j) During a period of at least twelve consecutive months beginning three years after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will notfurnish to you, and to each Underwriter who may so request in writing, copies of all periodic and special reports furnished to stockholders of the Company and of all information, documents and reports filed with the Commission.
(k) The Company will not permit any 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 affiliatesCommon Stock.
(l) The Company will not, directly or indirectly, to without the prior written consent of X.X. Xxxxxxxxx & Company, LLC on behalf of the Underwriters, issue, selloffer, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) purchase or otherwise dispose of(or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock (or any securities convertible into, exercisable for or exchangeable or exercisable for, shares of Common Stock for Common Stock) or any interest therein or announce any intention to do any a period of 90 days following the commencement of the foregoing without the prior written consent public offering of the AgentShares by the Underwriters, except pursuant to this Agreement and except for issuances pursuant to the exercise of stock options outstanding on or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and except as contemplated by the Prospectus.
(gm) During a period of three years from The Company will cause the effective date Shares to be duly included for quotation on the Nasdaq National Market prior to the Closing Date.
(n) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the Registration Statementprice of any securities of the Company.
(o) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(p) The Company will timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Company will furnish to you copies rules and regulations promulgated thereunder, the Securities Exchange Act of 1934, as amended (i) the "Exchange Act"), and the rules and regulations promulgated thereunder, and all reports to its stockholders; and (ii) all such reports, financial statements forms and proxy or information statements documents filed by will comply as to form and substance with the applicable requirements under the Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(q) The Company is familiar with the Investment Company Act of 1940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company with was not and will not be an "investment company" or a "company" controlled by an "investment company" within the Commission or any national securities exchangemeaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (andthe Representatives immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment to either Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of to either Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to either Registration Statement, the Prospectus or the documents incorporated or deemed to be incorporated by reference in either Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to either Registration Statement or any amendment or supplement to the Prospectus or the documents incorporated or deemed to be incorporated by reference in either Registration Statement or the Prospectus or for additional information and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the either Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Representatives notice of its intention to file or prepare any post-effective amendment thereto to either Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the initiationSecurities which differs from the Prospectus first provided to the Underwriters for use in confirming sales of the Securities, whether or the threatening, of any proceedings therefor, (vnot such revised prospectus is required to be filed pursuant to Rule 424(b) of the receipt 1933 Act Regulations), will furnish the Representatives with copies of any comments 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 the Representatives or counsel for the Underwriters shall reasonably object.
(c) The Company has delivered to the Representatives one copy of each Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and will also deliver to the Representatives as many conformed copies of each Registration Statement as originally filed and of each amendment thereto (without exhibits) as the Representatives may reasonably request.
(d) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to the Representatives and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(vif) The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required by applicable law. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for sale in any state or jurisdiction or the initiation initiating or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(eg) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby (or 120 days in the case of the Registration Statement occursclose of the Company’s fiscal year), an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of at least twelve consecutive months beginning after the effective Company’s fiscal quarter next following the date of the Registration Statementthis Agreement.
(fh) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, the Securities in the manner to be specified in the Prospectus Supplement under “Use of Proceeds.”
(i) pursuant to any existing employee benefit plansImmediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (iithe “Prospectus Supplement”), containing the terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with such Rule 424(b) upon of the exercise, conversion or exchange 1933 Act Regulations copies of any currently outstanding stock options or warrants, the Prospectus (iiiincluding such Prospectus Supplement).
(j) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of 90 days the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) During a period from and including the date hereofof this Agreement through and including the day which is 30 days after the date of this Agreement, the Company will not, and will not permit any without the prior written consent of its affiliatesUBS Warburg LLC, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (debt securities or any securities convertible into, into or exchangeable or exercisable for or exchangeable any debt securities (except for Common Stock) or any interest therein or announce any intention the Securities sold to do any of the Underwriters pursuant to this Agreement); provided that the foregoing without shall not prevent the prior written consent of Company from making borrowings under the AgentRevolving Loan Agreement or under bank credit lines.
(gl) During a period In accordance with the Cuba Act, if applicable, and without limitation to the provisions of three years from the effective date of the Registration StatementSections 6 and 7 hereof, the Company will furnish agrees to you copies indemnify and hold harmless the Underwriters from and against any and all loss, liability, claim, damage and expense whatsoever (including fees and disbursements of (i) all reports to its stockholders; and (ii) all reportscounsel), financial statements and proxy or information statements filed as incurred, arising out of any violation by the Company with of the Commission or any national securities exchangeCuba Act, if applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Kb Home)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto thereto, to become effective as promptly as possible, and if Rule 430A is used or the filing of . The Company shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form reasonably approved by the Company will Underwriter and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed Securities Act not later than the Commission’s close of business on the second Business Day following the execution and delivery of this Agreement, or, if applicable, such earlier time period and will provide evidence satisfactory to you of such timely filing. If as may be required by the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Rules.
(iib) The Company will notify you immediately shall promptly advise the Underwriter in writing (and, if requested by you, will confirm such notice in writing)
(iA) when any post-effective amendment to the Registration Statement and shall have become effective or any amendments thereto become effectivesupplement to the Prospectus shall have been filed, (iiB) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of the initiation, any preliminary prospectus or the threatening, institution or threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose and (viD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not file any amendment of the Commission shall propose Registration Statement or enter a stop order at supplement to the Prospectus or any time, document incorporated by reference in the Registration Statement unless the Company will has furnished the Underwriter a copy for their review prior to filing and shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(bc) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act or the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, therein in the light of the circumstances under which they were made, made 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of Section 4(b), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission and will use its best efforts to have any or an amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent which shall effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestcompliance.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior shall make generally available to its security holders and to the time of effectiveness Underwriter as soon as practicable, but not later than 45 days after the end of the Registration Statement12 month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12 month period coincides with the Company’s fiscal year), an earning statement (which need not be audited) of the Company, covering such 12 month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(e) The Company shall reasonably cooperate with the Underwriter and its counsel in endeavoring to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriter may designate and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) process in any jurisdiction or subject itself to its security holders and to you taxation as soon as practicable, but not later than 45 days after the end of its fiscal quarter doing business 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statementany jurisdiction.
(f) Other than The Company, during the Company's issuance of Common Stock, (i) pursuant period when the Prospectus is required to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated be delivered under the Securities Act which is exempt from registration under and the Securities Rules or the Exchange Act, during will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(g) Without the prior written consent of the Underwriter, for a period of 90 days from after the date hereofof this Agreement, the Company will notand the individuals listed on Schedule II hereto shall not issue, and will not permit sell or register with the Commission (other than on Form S-8 or on any of its affiliatessuccessor form), or otherwise dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any equity securities 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 Company (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do any equity securities of the foregoing Company), except for (A) those shares of Common Stock set forth in the Lockup Agreement, (B) the issuance of shares pursuant to the Company’s existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus, and (C) the issuance of shares of the Company’s Common Stock upon the exercise or conversion of securities of the Company outstanding on the date hereof and disclosed in the Registration Statement or Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company’s existing stock option plan or bonus plan that are exercisable during such 90-day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 90-period, the Company shall use its best efforts to obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of the AgentUnderwriter, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for, any shares of Common Stock) owned by such person.
(gh) During a period of three five years from the effective date of the Registration StatementStatement to the extent not otherwise available on the Commission’s website (currently available at hxxx://xxx.xxx.xxx), the Company will to furnish to you copies of (i) all reports or other communications (financial or other) furnished to its stockholders; , and (ii) all reportsto deliver to you as soon as they are available, copies of any reports and financial statements and proxy furnished to or information statements filed by the Company with the Commission or any national securities exchange.exchange on which the Shares or any class of securities of the Company is listed;
(i) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by each of the New York Stock Exchange (including any required registration under the Exchange Act) and the Toronto Stock Exchange in connection with the transactions contemplated by this Agreement and the Shares;
(j) Prior to the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the Underwriter unless in the judgment of the Company and its counsel, and after notification to the Underwriter, such press release or communication is required by law;
(k) The Company shall (A) furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement and the Prospectus (including all exhibits thereto and amendments thereof) and all amendments thereof (i) prior to 10:00 a.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with ------------------------ each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares and if Rule 430A the Warrants by the Underwriters of which the Representatives shall not previously have been advised and furnished with a copy, or to which the Representatives shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representatives and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representatives) in accordance with the requirements of the Act.
(d) The Company will not give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Representatives 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 to which the Representatives or Camhy Xxxxxxxxx & Xxxxx LLP ("Underwriters' Counsel") shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Representatives, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably designate to permit the sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, -------- however, the Company shall not be required to qualify as a foreign corporation ------- or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representatives agree that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Representatives promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriters copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representatives, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(gh) During a period of three five (5) years from after the date hereof, until and including the like day and month in 2001, the Company will furnish to its stockholders, as soon as practicable, annual reports (including consolidated financial statements of the Company and its consolidated subsidiaries audited by independent public accountants) and will make available to its stockholders consolidated unaudited quarterly reports (except for the last quarter of each fiscal year) of earnings of the Company and its consolidated subsidiaries, and will deliver to the Representatives:
(i) concurrently with furnishing such quarterly reports to its stockholders, a consolidated statement of income of the Company and its consolidated subsidiaries for each quarter in the form furnished to the Company's stockholders;
(ii) concurrently with furnishing such annual reports to its stockholders, a consolidated balance sheet of the Company and its consolidated subsidiaries as at the end of the preceding fiscal year, together with statements of consolidated operations, stockholders' equity, and cash flows of the Company and its consolidated subsidiaries for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all other reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, Nasdaq or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the Company and its Businesses which the Representatives may reasonably request. During such five-year period, the foregoing financial statements will be accompanied by similar financial statements for any significant subsidiary which is not consolidated.
(i) The Company will maintain a transfer agent (the "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 the Securities and the Representatives' Warrants.
(j) The Company will furnish to the Representatives, without charge, at such place as the Representatives may designate, copies of each preliminary prospectus, the Registration Statement, the Prospectus and any pre- effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), in each case as soon as available and in such quantities as the Representatives may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representatives with true copies of duly executed Lock-up Agreements. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company shall use its best efforts to cause its officers, directors, stockholders or affiliates (within the meaning of the Regulations) not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, unlawful stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities substantially in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Regulations.
(o) The Company shall use its best efforts to cause the Securities to be quoted on the Nasdaq SmallCap Market, and for a period of two (2) years from the date hereof shall use its best efforts to maintain the quotation of the Securities to the extent outstanding.
(p) For a period of two (2) years from the Closing Date, the Company shall furnish to you copies the Representatives, at the Company's sole expense, monthly transfer sheets relating to the Common Stock and Warrants.
(q) For a period of five (5) years after the effective date of the Registration Statement the Company shall, at the Company's sole expense, take all necessary and appropriate action to qualify the Common Stock and Warrants in all jurisdictions of the United States which do not require the Company to qualify as a foreign corporation or to file a general consent to service of process in order to permit secondary sales of such securities pursuant to the Blue Sky laws of those jurisdictions.
(r) The Company (i) prior to the effective date of the Registration Statement has filed a Form 8-A with the Commission providing for the registration of the Common Stock and Redeemable Warrants under the Exchange Act and (ii) as soon as practicable will use its best efforts to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Xxxxx'x OTC Manual and to continue such inclusion for a period of not less than five (5) years.
(s) The Company agrees that for a period of twelve (12) months following the effective date of the Registration Statement it will not, without the prior written consent of Pryor, McClendon, offer, issue, sell, contract to sell, grant any option for the sale of or otherwise dispose of any Common Stock or securities convertible into Common Stock, except for the issuance of shares of Common Stock registered under the Act pursuant to the registration Statement.
(t) Until the completion of the distribution of the Securities, the Company shall not without the prior written consent of Xxxxx, XxXxxxxxx or Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices.
(u) For a period equal to the lesser of (i) all reports to its stockholders; five (5) years from the date hereof, and (ii) the sale to the public of the Representatives's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of an appropriate form for the registration under the Act of the Representatives's Securities.
(v) The Company agrees that it shall use its best efforts, which shall include, but shall not be limited to, the solicitation of proxies, to elect one (1) designee of Xxxxx, XxXxxxxxx and National to the Company's Board of Directors for a period of five (5) years following the Closing Date, provided that such designee is reasonably acceptable to the Company and that such director may be excluded from consideration of certain confidential matters which, in the good faith judgment of a majority of the other directors, make such director's presence not appropriate.
(w) The Company agrees that within forty-five (45) days after the Closing Date it shall retain a public relations firm which is reasonably acceptable to Xxxxx, XxXxxxxxx and National. The Company shall keep such public relations firm and any replacement for a total period of two (2) years from the Closing Date. Any replacement public relations firm shall be retained only with the consent of Xxxxx, XxXxxxxxx and National, which shall not be unreasonably withheld.
(x) The Company agrees that any and all reportsfuture transactions between the Company and any of its officers, financial statements directors, principal stockholders and proxy or information statements filed the affiliates of the foregoing persons will be on terms no less favorable to the Company than could reasonably be obtained in arm's length transactions with independent third parties, and that any such transactions also be approved by a majority of the Company's outside independent directors disinterested in the transaction.
(y) The Company shall prepare and deliver, at the Company's sole expense, to Xxxxx, XxXxxxxxx and National within the one hundred and twenty (120) day period after the later of the effective date of the Registration Statement and the latest Option Closing Date, as the case may be, one bound volume each containing all correspondence with regulatory officials, agreements, documents and all other materials in connection with the offering to which such Registration Statement relates as requested by the Company with the Commission or any national securities exchangeUnderwriters' Counsel.
Appears in 1 contract
Covenants of the Company. (a) The Company covenants and agrees with the ------------------------ Agent thatas follows:
1. If and to the extent the Remarketed Notes are required (iin the view of counsel, which need not be in the form of a written opinion, for either the Remarketing Agent or the Company) If to be registered under the Securities Act as in effect at the time of the Remarketing,
i. to prepare the Registration Statement has not yet been declared effective on and the date of this AgreementProspectus, to file any such Prospectus pursuant to the Company will Securities Act within the period required by the Securities Act and the rules and regulations thereunder and to use its best commercially reasonable efforts to cause the Registration Statement and any amendments thereto to become be declared 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for prior to the second Business Day immediately preceding the Remarketing Date;
ii. to file promptly with the Commission any amendment of or supplement to the Registration Statement or the Prospectus or for any additional informationsupplement to the Prospectus that may, (iii) in the reasonable judgment of the mailing Company, be required by the Securities Act or requested by the delivery Commission;
iii. to advise the Commission for filing Remarketing Agent, promptly after it receives notice thereof, of the time when any amendment of or supplement to the Registration Statement has been filed or becomes effective or any supplement to the ProspectusProspectus or any amended Prospectus has been filed and to furnish the Remarketing Agent with copies thereof;
iv. to advise the Remarketing Agent, (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 any of the Shares Remarketed Notes for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement or the Prospectus or for additional information, and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Prospectus or suspending any such qualification, the Company will to use promptly its best efforts to prevent the issuance of any such stop order and, if issued, obtain its withdrawal;
v. to obtain the lifting of such order as soon as possible. The Company will not file any amendment furnish promptly to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time Remarketing Agent such copies of the effectiveness following documents as the Remarketing Agent shall reasonably request: (A) conformed copies of the Registration Statement before as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (B) the Preliminary Prospectus and any amended or after supplemented Preliminary Prospectus, (C) the effective date of Prospectus and any amended or supplemented Prospectus; and (D) any document incorporated by reference in the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
Prospectus (b) If excluding exhibits thereto); and, if at any time when delivery of a prospectus relating to the Shares Prospectus is required to be delivered under in connection with the Securities Act Remarketing, any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Securities Act RegulationsExchange Act, to notify the Company will notify you promptly Remarketing Agent and, upon its request, to file such document and to prepare and file with furnish without charge to the Commission Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an appropriate amendment amended or supplement (in form and substance satisfactory to you) which supplemented Prospectus that will correct such statement or omission and will use its best efforts or effect such compliance;
vi. prior to have filing with the Commission (A) any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior supplement to the time of effectiveness of the Registration Statement, Prospectus or (B) any Prospectus pursuant to qualify, if necessary, the Shares for offering and sale Rule 424 under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) , to its security holders furnish a copy thereof to the Remarketing Agent and counsel to you the Remarketing Agent;
vii. as soon as practicable, but in any event 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 occurseighteen months, 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., to make "generally available to its security holders" an "earnings statement" of the Company and its subsidiaries complying with (which need not be audited) Section 11
(fa) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act, during ). The terms "Generally Available to its Security Holders" and "Earnings Statement" shall have the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of meanings set forth in Rule 16a-1(h) 158 under the Exchange Securities Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.and
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees ------------------------ with the ------------------------ Agent Underwriters that:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-post- effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434424(b)) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two and your counsel signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.. The copies of the Registration Statement, the Prospectus and each amendment thereto furnished to you will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX except to the extent permitted by Regulation S-T.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will timely file such reports pursuant to the Securities Exchange Act of 1934 as are necessary in order to make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 360 days from the date hereofof the Prospectus, the Company will not, and will not permit any of its affiliateswithout your prior written consent, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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, directly or indirectly, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention ), and the Company will obtain the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by you and listed on Schedule C attached hereto not to do engage in any of the foregoing without aforementioned transactions on their own behalf, other than the prior written consent Company's sale of Shares hereunder and the AgentCompany's grant of options and issuance of Common Stock upon the exercise of presently outstanding stock options issued pursuant to the 1996 Stock Plan as in effect on the date hereof.
(g) The Company will comply with the Act and the Regulations and the 1934 Act and the regulations promulgated under the 1934 Act (the "1934 Act Regulations") so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Act or the Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(h) The Company, during the period when the prospectus is required to be delivered under the Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(i) 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 stockholders; shareholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
(j) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to cause the Shares to be authorized for quotation on the Nasdaq Stock Market's National Market (the "Nasdaq National Market").
(l) The Company will file with the Commission such reports on Form SR as may be required pursuant to Rule 463 of the Regulations.
(m) Friedman, Billings, Xxxxxx & Co. Inc. ("FBR") shall have the right to act as the exclusive financial advisor, placement agent and underwriter to the Company in connection with any debt (other than bank debt) or equity financings and any sale, transfer, merger, consolidation or other similar transaction (a "Sale Transaction") involving all or a substantial portion of the Company during the period ending 18 months after the Closing Date. Any services provided by FBR to the Company pursuant to the foregoing shall be on terms and conditions, and for fees, as are customary and competitive for FBR's provision of those services.
(n) If any investor identified to the Company by FBR during the Engagement Period (as defined below) purchases any additional securities of the Company or an affiliate within 12 months following the Closing Date or pursuant to a commitment during the Engagement Period (other than a transaction in which FBR is entitled to a fee as placement agent), the Company shall pay FBR a fee of 7.0% of the aggregate gross proceeds from the sale of such securities. The Engagement Period shall be the period commencing on May 10, 1996 and ending on the earliest to occur of the following: (i) completion of the sale of the Shares or a Sale Transaction in lieu thereof, or (ii) termination of this Agreement by FBR or the Company pursuant to Section 10.
(o) If a Sale Transaction is consummated in lieu of the sale of Shares, in consideration of FBR's services on behalf of the Company pursuant to this Agreement, the Company agrees to pay FBR a transaction fee equal to 2.5% of the total consideration (the "Total Consideration") paid or payable in such Sale Transaction. Total Consideration shall mean the aggregate value, whether in cash, securities, assumption of (or purchase subject to) debt or liabilities or other property, obligations or services, paid or otherwise assumed in connection with the Sale Transaction.
(p) In the event that this Agreement expires or is terminated (other than a termination by FBR pursuant to Section ____ without the agreement of the Company), without the Offering or a Sale transaction being consummated, and the Company (or an entity organized or sponsored by the Company), within 12 months after the date of such termination, (i) consummates a sale of securities substantially similar to the Offering as contemplated hereunder, the Company shall pay to FBR a fee in cash equal to 3.5% of the gross proceeds raised by the Company (or such entity) from the sale of any securities sold by the Company (or such entity), concurrently with the closing of any such sale, or (ii) consummates a Sale Transaction, the Company shall pay to FBR a fee in cash equal to 1.0% of the Total Consideration paid or payable in connection with such Sale Transaction.
(q) Xxxxxxx Xxxxxxxx, Senior Advisor of FBR, will serve on the Board of Directors after the Closing Date.
Appears in 1 contract
Covenants of the Company. 10.1 The Company covenants and agrees with the ------------------------ Agent thatUnderwriters that the Company:
(ia) If will promptly provide to the Registration Statement has not yet been declared effective Underwriters and their counsel, during the period commencing on the date hereof and until completion of this Agreementthe Distribution of the Units, drafts of any filings to be made with any securities exchange or regulatory body in Canada or the United States or any other jurisdiction by the Company or the Subsidiaries of information relating to the Offering or pursuant to the Company’s or the Subsidiaries’ continuous disclosure obligations under applicable Canadian Securities Laws for review by the Underwriters and their counsel prior to filing, and give the Underwriters and their counsel a reasonable opportunity to provide comments on such filing, subject to the Company’s timely disclosure obligations under applicable Canadian Securities Laws;
(b) will use its best efforts to cause advise the Registration Statement Underwriters, promptly after receiving notice thereof, of the time when the Final Prospectus 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 Supplementary Material has been used) pursuant to Rule 424(b) or Rule 434 within filed and receipts therefor from the prescribed time period Securities Commissions have been obtained and will provide evidence satisfactory to you the Underwriters of each such filing and copies of such timely filing. If receipts;
(c) will advise the Company elects Underwriters, promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission of any order suspending or preventing the use of any of the Offering Documents or suspending or seeking to rely on Rule 434, suspend the Company will prepare and file a term sheet that complies with trading of the requirements of Rule 434.
Offered Securities; (ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Offered Securities for sale Distribution in any jurisdiction of the Qualifying Jurisdictions; (iii) the institution, threatening or the initiation or threatening contemplation of any proceeding for that purpose. If any such purposes; or (iv) any requests made by any Securities Commission for amending or supplementing any of the Commission shall propose Offering Documents or enter a stop order at any timefor additional information, the Company and will use its best commercially reasonable efforts to prevent the issuance of any such stop order or any suspension respectively referred to in (i) or (ii) above and, if any such order is issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, withdrawal thereof promptly or if it shall be necessary at any time such suspension occurs, to amend or supplement the Prospectus or Registration Statement to comply promptly remedy such suspension in accordance with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.this Agreement;
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness Closing Date or Option Closing Date, as applicable, make all reasonable arrangements that are within the control of the Registration Statement, to qualify, if necessary, Company for the electronic deposit of the Common Shares for offering and sale under Warrants comprising the securities laws relating Units and Additional Securities pursuant to the offering non-certificated issue system of CDS on the Closing Date or sale Option Closing Date, as applicable. All fees and expenses payable to CDS and/or the Transfer Agent in connection with the electronic deposit and the fees and expenses payable to CDS in connection with the initial or additional transfers as may be required in the course of the Shares Distribution of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event Units shall be borne by the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.Company;
(e) The Company will make generally available (within the meaning of Section 11(a) use its commercially reasonable efforts to remain, and to cause each of the Securities Act) Subsidiaries to its security holders and to you as soon as practicableremain, but not later than 45 days after until the end of its fiscal quarter in which the first anniversary expiry date of the effective date Warrants, a corporation validly subsisting under the laws of its jurisdiction of existence, and to be duly licensed, registered or qualified as an extra-provincial or foreign corporation or entity in all jurisdictions where the character of its properties owned or leased or the nature of the Registration Statement occursactivities conducted by it make such licensing, an earnings statement (registration or qualification necessary and to carry on its business in form complying the ordinary course and in compliance in all material respects with all applicable Laws of each such jurisdiction, provided that the provisions Company shall not be required to comply with this Section following the completion 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.merger, amalgamation, arrangement, business combination or take- over bid pursuant to which Company’s securities cease to be listed on a recognized stock exchange or quotation system;
(f) Other than the Company's issuance of Common Stock, will use its commercially reasonable efforts to maintain:
(i) pursuant to its status as a “reporting issuer” under Canadian Securities Laws and not in default of any existing employee benefit plans, requirement of such Canadian Securities Laws until the expiry date of the Warrants; and
(ii) the listing of the Common Shares and Warrants on the TSXV or such other recognized stock exchange or quotation system as PI, on behalf of the Underwriters, may approve (acting reasonably), until the expiry date of the Warrants, provided that (A) the foregoing is subject to the obligations of the directors to comply with their fiduciary duties to the Company; and (B) the Company shall not be required to comply with this Section following the completion of a merger, amalgamation, arrangement, business combination or take-over bid pursuant to which the Company’s securities cease to be listed on a recognized stock exchange or quotation system;
(g) will use its commercially reasonable efforts to ensure that the Common Shares and the Warrants partially comprising the Offered Securities are listed and posted for trading on the TSXV on the Closing Date;
(h) [intentionally left blank]
(i) will apply the net proceeds from the issue and sale of the Units and the Additional Securities in accordance with the disclosure set out under the heading “Use of Proceeds” in the Final Prospectus;
(j) [intentionally left blank]
(k) prior to the Closing Date or Option Closing Date, as the case may be, will promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect this Agreement and the transactions contemplated hereby, including to the Offering, and take all such steps as may be reasonably required within its power to implement to the full extent the provisions, and to satisfy the conditions, of this Agreement as it relates to the sale and issuance of Offered Securities;
(l) will on or before the time of filing the Final Prospectus provide to the Underwriters a copy of the conditional listing approval of the Common Shares partially comprising the Offered Securities and the Warrant Shares issuable upon exercise of the Warrants on the TSXV;
(m) will forthwith notify the Underwriters of the breach of any covenant of this Agreement in any material respect by the Company, or upon the exercise, conversion Company becoming aware that any representation or exchange warranty of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company contained in this Agreement or any document, instrument, certificate or other agreement delivered pursuant hereto is or was untrue or inaccurate in any material respect at the time such representation or warranty was made;
(n) subject to compliance with Canadian Securities Laws, will not, and will not permit at any of its affiliates, directly or indirectly, time prior to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any Closing of the economic consequences of ownership Offering, halt the trading 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 Shares on the foregoing TSXV without the prior written consent of PI, on behalf of the Agent.Underwriters (such consent not to be unreasonably withheld);
(go) During a period will use its commercially reasonable efforts to cause the directors and officers of three years from the effective Company and other persons referred to in Section 11.1(k) to deliver at the Closing Time on the Closing Date, the agreements contemplated by Section 11.1(k);
(p) will duly execute and deliver the Warrant Indenture at the Closing Time on the Closing Date and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Company;
(q) will ensure that at the Closing Time on the Closing Date or Option Closing Date, as applicable, the Warrants are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in the Warrant Indenture;
(r) ensure that the Warrant Shares issuable upon the exercise of the Warrants shall, upon issuance in accordance with terms thereof and receipt by the Company of payment therefor, be duly issued as fully paid and non-assessable Common Shares;
(s) ensure that, at all times prior to the until the expiry date of the Registration StatementWarrants, a sufficient number of Warrant Shares are allotted and reserved for issuance upon the Company will furnish to you copies exercise of (i) all reports to its stockholdersthe Warrants; and (iit) all reportswill, financial statements and proxy prior to the Closing Date or information statements filed Option Closing Date, as the case may be, make available management of the Company for meetings with investors as scheduled by the Company with Underwriters at the Commission or any national securities exchangediscretion of the Co-Lead Underwriters, acting reasonably.
Appears in 1 contract
Samples: Underwriting Agreement (Invictus MD Strategies Corp.)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(ia) If To prepare the Registration Statement has prospectus supplement in a form approved by you (such approval not yet been declared effective on the date of this Agreement, the Company will use its best efforts to cause the Registration Statement be unreasonably withheld or delayed) 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) such prospectus supplement pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second (2nd) business day following the execution and delivery of this Agreement; to make no further amendment 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional informationwhich shall be disapproved by you promptly after reasonable notice thereof; to advise you, (iii) promptly after it receives notice thereof, of the mailing or the delivery to the Commission for filing of time when any amendment of or supplement to the Registration Statement has been filed or becomes effective or any supplement to the ProspectusProspectus or any amended Prospectus has been filed and to furnish you with copies thereof other than as required by law; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), (iv13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Public Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningprospectus, of any proceedings therefor, (v) of the 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 Shares Public Securities for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any prospectus or suspending any such qualification, the Company will promptly to use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting withdrawal of such order as soon as possibleorder. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If If, at any time when a prospectus relating to the Shares Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the Company furnishing to the Representative for its review a copy thereof prior to filing, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(b) Prior to 12:00 P.M., New York City time, on the business day next succeeding the date of this Agreement and from time to time, to furnish each Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a Prospectus is required at any time prior to the expiration of nine (9) months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or or, if for any other reason it shall be necessary at any time during such period to amend or supplement the Prospectus or Registration Statement to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Securities Act RegulationsExchange Act, the Company will to notify you promptly and upon your reasonable request to file such document and to prepare and file with furnish without charge to the Commission Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an appropriate amendment amended Prospectus or a supplement (in form and substance satisfactory to you) the Prospectus which will correct such statement or omission or effect such compliance, and will use its best efforts in case any Underwriter is required to have deliver a prospectus in connection with sales of any amendment of the Public Securities at any time nine (9) months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Registration Statement declared effective as soon as possibleSecurities Act.
(c) The Company will promptly deliver shall have the right to you two signed copies engage the Representative, on a non-exclusive basis, as its agents for the solicitation of the Registration Statementexercise of the Warrants. The Company, including exhibits and all amendments theretoif it so engages the Representative, will (i) assist the Representative with respect to such solicitation, if requested by the Representative, and (ii) at the Representative's request, provide the Representative, and direct the Company's transfer and warrant agent to provide to the Representative, at the Company's cost, lists of the record and, to the extent known, beneficial owners of, the Warrants. Commencing one (1) year from the Effective Date, if it so engages the Representative, the Company will promptly deliver to each pay the Representative a commission of five percent (5%) of the Agent exercise price of the Warrants for each Warrant exercised after such number date, payable upon payment of copies the exercise price, on the terms provided for in the Warrant Agreement, only if permitted under the rules and regulations of any preliminary prospectusthe NASD and only to the extent that an investor who exercises his Warrants specifically designates, in writing, that the Prospectus, Representative solicited his exercise. The Representative may engage sub-agents in their solicitation efforts if engaged by the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestCompany.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior hereby agrees to pay on each of the Closing Date to the time of effectiveness extent not paid at Closing Date, all expenses incident to the performance of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale obligations of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicableunder this Agreement, including but not later than 45 days after limited to (i) the end preparation, printing, filing and mailing (including the payment of its fiscal quarter in which the first anniversary date of the effective date postage with respect to such mailing) of the Registration Statement occursand exhibits thereto, an earnings statement (the Prospectuses and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in form complying with quantities as may reasonably be required by 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plansUnderwriters, (ii) upon the exerciseprinting, conversion issuance and delivery of the Units and the Representative's Warrants, including any transfer or exchange of any currently outstanding stock options or warrantsother taxes payable thereon, (iii) in exchange for shares the filing fees incident to securing any required review by the NASD of MGV Energythe fairness or reasonableness of the underwriting terms and arrangements of the Offering and the reasonable fees and disbursements of the Representative's counsel relating thereto, Inc. currently held by minority shareholders thereof, or (iv) costs of placing "tombstone" advertisements in The Wall Street Journal, The New York Times and a transaction described third publication to be selected by the Representative not to exceed $10,000, (v) fees and disbursements of the transfer and warrant agent, (vii) the Company's expenses associated with "due diligence" meetings arranged by the Representative including a videotape or power-point presentation, and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in Rule 145(a)(2) or (3) promulgated under this Section 3(d), provided that the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days Representative provides reasonably detailed invoices. The Representative may deduct from the date hereofnet proceeds of the Offering payable to the Company on the Closing Date the expenses set forth herein to be paid by the Company to the Representative and others. If the Offering contemplated by this Agreement is not consummated for any reason whatsoever for reasons not attributable to the Underwriters, then the Company shall reimburse the Underwriters in full for their reasonable out of pocket accountable expenses actually incurred by the Representative. The Representative shall retain such part of the non-accountable expense allowance previously paid, if any, as shall equal its reasonable actual out-of-pocket accountable expenses and refund the balance. If the amount previously paid is insufficient to cover such reasonable actual out-of-pocket accountable expenses, the Company will not, shall remain liable for and will not permit promptly pay any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale other actual out-of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent-pocket accountable expenses.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on the date execution of this each Pricing Agreement, the Company will use its best efforts prepare a Prospectus Supplement setting forth the principal amount of Debt Securities covered thereby and their terms not otherwise specified in the applicable Indenture, whether the Debt Securities will be Senior Debt Securities or Subordinated Debt Securities, the names of the Underwriters participating in the offering and the principal amount of Debt Securities which each severally has agreed to cause purchase, the Registration Statement names of any Underwriters acting as manager or co-managers in connection with the offering (the "Representatives" which term shall include each Underwriter in the event that there be no manager or co-manager), the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and any amendments thereto to become effective as promptly as possible11 12 reallowance, if any, and if Rule 430A is used or such other information as you and the filing Company deem appropriate in connection with the offering of the Securities. The Company will promptly transmit copies of the Prospectus is otherwise required under Rule 424(b) or Rule 434, Supplement to the Company will file the Prospectus (properly completed if Rule 430A has been used) Commission for filing pursuant to Rule 424(b) or Rule 434 within 424 of the prescribed time period Regulations and will provide evidence satisfactory furnish to you the Underwriters named therein as many copies of the Prospectus and such timely filing. If Prospectus Supplement as the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Representatives shall reasonably request.
(iib) The Company will notify you immediately (andthe Underwriters promptly, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings therefor, for that purpose and (v) of the receipt mailing or the delivery to the Commission for filing of any comments from the Commission and (vi) of the receipt by the Company of any notification with respect supplement to the suspension of Prospectus or any document to be filed pursuant to the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose1934 Act. If the Commission shall propose or enter a stop order at any time, the 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 the lifting of such order as soon as possible. thereof at the earliest possible moment.
(c) The Company will not give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters 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 the Representatives or counsel to the Underwriters shall reasonably object, unless required to be filed do so pursuant to Rule 424(b)or Rule 434the applicable federal securities laws.
(d) that differs from The Company will deliver to the prospectus on file at the time of the effectiveness Representatives signed copies of the Registration Statement before as initially filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated or deemed to 12 13 be incorporated by reference therein) and will also deliver to the effective date Underwriters as many conformed copies of the Registration Statement to which you shall as initially filed and of each amendment thereto (without exhibits) as the Underwriters may reasonably object in writing after being timely furnished in advance a copy thereofrequest.
(be) If at any time when a prospectus relating to the Shares Prospectus is required by the 1933 Act to be delivered under the in connection with sales of Securities Act any event shall have occurred occur or condition exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriters, to further amend or supplement the Company, Prospectus in order that the Prospectus will not 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, therein not misleading in the light of the circumstances under which they were made, not misleading, existing at the time it is delivered to a purchaser or if it shall be necessary necessary, in the view of such counsel, at any such time to amend or supplement the Prospectus or Registration Statement or the Prospectus in order to comply with the Securities requirements of the 1934 Act or the Securities 1934 Act Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate such amendment or supplement (in form and substance satisfactory supplement, whether by filing documents pursuant to you) which will the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission and will use its best efforts to have any amendment to or make the Registration Statement declared effective as soon as possiblecomply with such requirements.
(cf) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithendeavor, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you the Representatives may designate and to will maintain such qualification in effect for so as long as may be required for the distribution thereofof the Securities; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but in any jurisdiction in which it is not later than 45 days after the end of its fiscal quarter so qualified. In each jurisdiction in which the first anniversary date Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of the effective date of the Registration Statement occurs, an earnings statement (such jurisdiction to continue such qualification in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering effect for a period of at least twelve consecutive months beginning after not less than one year from the effective date of the Registration Statement.
(fg) Other than the Company's issuance With respect to each sale of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofSecurities, the Company will notmake generally available to its security holders as soon as practicable, and will but not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for later than 60 days after the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any close 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.covered there-
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter ------------------------ Agent that:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause any post-effective amendment to the Registration Statement and any amendments thereto Statement, if not effective at the Execution Time, to become effective as promptly as possible, and if Rule 430A is used or effective. Prior to the filing termination of the Prospectus is otherwise required under Rule 424(b) or Rule 434offering of the Stock, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Basic Prospectus (other than a prospectus supplement relating solely to an offering of the Company's Common Stock other than the Stock) unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed if Rule 430A has been used) completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) or Rule 434 within the prescribed time period prescribed and will provide evidence satisfactory to you the Representatives 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
promptly advise the Representatives (i) when any post-effective amendment to the Registration Statement, if not effective at the Execution Time, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Stock, any amendment to the Registration Statement and any amendments thereto shall have been filed or become effective, ; (iiiv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Registration Statement or the Final Prospectus or for any additional information, ; (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose; and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the The 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(b) If If, at any time when a prospectus relating to the Shares Stock is required to be delivered under the Securities Act Act, any event shall have occurred occurs as a result of which the Final Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend the Registration Statement or supplement the Final Prospectus or Registration Statement to comply with the Securities Act or the Securities Exchange Act Regulationsor the respective rules thereunder, the Company promptly will notify you promptly and prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 4, 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 Registration Statement declared effective as soon as possibleor effect such compliance.
(c) The Company will promptly deliver to you two signed copies of the Registration StatementAs soon as practicable, including exhibits and all amendments thereto, and the Company will promptly deliver make generally available to each its security holders and to the Representatives an earnings statement or statements of the Agent such number Company which will satisfy the provisions of copies Section 11(a) of any preliminary prospectus, the Prospectus, Act and Rule 158 under the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestAct.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior furnish to the time of effectiveness Representatives and counsel for the Underwriters, without charge, copies of the Registration StatementStatement (including exhibits thereto) and, to qualifyso long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, if necessary, as many copies of any Preliminary Prospectus and the Shares for offering Final Prospectus and sale under any supplement thereto as the securities laws Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processoffering.
(e) The Company will make generally available (within cooperate in good faith with the meaning Representatives in qualifying the Stock for offer and sale under the laws of Section 11(a) such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Act) to its security holders Stock, and to you as soon as practicable, but not later than 45 days after will arrange for the end of its fiscal quarter in which the first anniversary date determination of the effective date legality of the Registration 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 StatementStock for purchase by institutional investors.
(f) Other than Until the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the business date hereofset forth on Schedule I hereto, the Company will not, and will not permit any without the consent of its affiliatesthe Representatives, directly offer, sell or indirectly, to issue, sell, offer or agree contract to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 intoby public offering, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do the public offering of, any of the foregoing without Company's Common Stock other than the prior written consent of the AgentStock.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Ameren Corp)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent CF&Co that:
(ia) If the Registration Statement has not yet been declared effective on After the date of this Agreement, the Company will use its best efforts with regard 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 Registration Statement with the Commission, and until such Registration Statement is otherwise declared effective, and during the period in which a prospectus relating to the Shares is required to be delivered by CF&Co under Rule 424(b) or Rule 434the Act, the Company will file notify CF&Co promptly of the Prospectus (properly completed if Rule 430A has been used) pursuant time when any subsequent amendment 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement has been filed with the Commission and has become effective or any amendments thereto become effective, (ii) subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; it will prepare and file with the Commission, (iii) as soon as reasonably practicable upon CF&Co's reasonable request, any supplements to the CF&Co Prospectus that, in CF&Co's reasonable opinion, may be necessary or advisable in connection with the distribution of the mailing or Shares by CF&Co (provided, however that the delivery failure of CF&Co to make such request shall not relieve the Commission for filing Company of any obligation or liability hereunder, or affect CF&Co's right to rely on the representations and warranties made by the Company in this Agreement); and the Company will cause each amendment of or supplement to the Registration Statement or Prospectus to be filed with the Prospectus, (ivCommission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, or deemed to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b) The Company will advise CF&Co, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningStatement, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofpurpose.
(bc) If at any Within the time when during which a prospectus relating to the Shares is required to be delivered by CF&Co under the Securities Act, the Company will comply with all requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, and will file on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement or Prospectus to comply with the Securities Act or the Securities Act RegulationsAct, the Company will promptly notify you CF&Co to suspend the offering of Shares during such period and the Company will promptly and prepare and file with the Commission an appropriate amendment amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory at the expense of the Company) so as to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent or effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestcompliance.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior use its commercially reasonable efforts to cause the time of effectiveness of Placement Shares to be listed on the Registration Statement, Exchange and to qualify, if necessary, qualify the Placement Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate CF&Co designates and to maintain continue such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided that in no event shall the Company shall not be obligated required in connection therewith to qualify as a foreign corporation (including registration of the Placement Shares in non-U.S. jurisdictions) or to execute file a general consent to service of processprocess in any jurisdiction.
(e) The Company will furnish to CF&Co and its counsel (at the expense of the Company) copies of the Prospectus and all amendments and supplements to the Prospectus that are filed with the Commission during the period in which a prospectus relating to the Placement Shares is required to be delivered under the Act, in each case as soon as reasonably practicable and in such quantities as CF&Co may from time to time reasonably request and, at CF&Co's request, will also furnish copies of the Prospectus to each exchange or market on which sales of Placement Shares may be made.
(f) The Company will furnish to CF&Co for a period of two (2) years from the date of this Agreement such information as reasonably requested by CF&Co regarding the Company or its Subsidiaries.
(g) The Company will make generally available (within to its security holders as soon as practicable, but in any event not later than 15 months after the meaning end of the Company's current fiscal quarter, an earning statement covering a 12-month period that satisfies the provisions of Section 11(a) of the Securities ActAct and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated in accordance with Section 11 of this Agreement, will pay all expenses incident to the performance of its security holders and to you as soon as practicableobligations hereunder, including, but not later than 45 days after limited to, expenses relating to (i) the end of its fiscal quarter in which the first anniversary date of the effective date preparation, printing and filing of the Registration Statement occursand each amendment and supplement thereto, an earnings statement of each Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and delivery of the Placement Shares, (iii) the fees and disbursements of the Company's counsel and accountants, (iv) the qualification of the Placement Shares under securities laws in form complying accordance with the provisions of Rule 158 Section 7(d) of this Agreement, including filing fees and any reasonable fees or disbursements of counsel for CF&Co in connection therewith, (v) the printing and delivery to CF&Co of copies of the Securities Act RegulationsProspectus and any amendments or supplements thereto, and of this Agreement, (vi) covering a period of at least twelve consecutive months beginning after the effective date fees and expenses incurred in connection with the listing or qualification of the Registration StatementPlacement Shares for trading on the Exchange, or (vii) filing fees and expenses, if any, of the Commission and the National Association of Securities Dealers, Inc. Corporate Finance Department (including the reasonable fees and expenses of CF&Co's counsel in connection with any such filing).
(fi) Other The Company will use the Net Proceeds as described in the Prospectus and shall not use such proceeds to make a loan to any employee, officer, director or shareholder of the Company (other than loans made to new employees as a condition of employment) (regardless of whether such loan was authorized by the Company's issuance Board of Common Stock, (i) pursuant Directors prior to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof).
(j) Without the written consent of CF&Co, which consent shall not be unreasonably withheld, the Company will not, and will not permit any of its affiliates, directly or indirectly, offer to issuesell, sell, offer or agree contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Shares offered pursuant to the provisions of this Agreement), or securities convertible into or exchangeable or exercisable for Common Stock, warrants or any rights to purchase or acquire, Common Stock during the period beginning on the date on which any Acceptance of a Placement Notice is delivered to CF&Co hereunder and ending on the fifth (5th) Trading Day immediately following the Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however, that such restrictions will not be required in connection with the Company's issuance or sale of (i) Common Stock, options to purchase shares of Common Stock or Common Stock issuable upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not shares subject to a waiver to exceed plan limits in its stock purchase plan) of the Company now in effect, and (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding including, without limitation, units of limited partnership interest in Equity Inns Partnership, L.P.
(k) The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise CF&Co immediately after it shall have received notice or obtain knowledge thereof, of any information or fact that would alter or affect any certificate or letter provided to CF&Co pursuant to this Agreement.
(l) The Company will cooperate with any due diligence review conducted by CF&Co or its agents, including, without limitation, providing information and making available documents and senior corporate officers, as CF&Co may reasonably request; provided, however, that the Company shall be required to make available documents and senior corporate officers only (i) at the Company's principal offices and (ii) during the Company's ordinary business hours.
(m) The Company agrees that on such dates as the Rules and Regulations shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Act (each and every filing under Rule 424(b), a "Filing Date") disclosing all information required by the Rules and Regulations to be set forth therein and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(n) On the date of the first Settlement Date under this Agreement and on the next Business Day following the first day of each month during the term of this Agreement following the date of the first Settlement Date under this Agreement, the Company shall furnish or cause to be furnished to CF&Co forthwith a certificate dated the date of the first Settlement Date under this Agreement or next Business Day following the first day of each month during the term of this Agreement following the date of the first Settlement Date under this Agreement, as the case may be, substantially in the form attached hereto as Exhibit 8(g) to the effect that the representations and warranties made by the Company in this Agreement, as modified upon the reasonable request of CF&Co based upon advice of counsel prior to the first Settlement Date, are true and correct on such date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) and that the Company has complied with all of the obligations to be performed by it at or prior to such date under this Agreement.
(o) On the date of the first Settlement Date under this Agreement and each time that there is filed with the Commission the Company's Annual Report on Form 10-K, the Company shall furnish or cause to be furnished forthwith to CF&Co and to counsel to CF&Co a written opinion of Hunton & Williams LLP, counsel to the Company ("Company Counsel"), or other couxxxx xxxisfactory to CF&Co, dated the date of the first Settlement Date under this Agreement or the date of filing with the Commission of such Annual Report on Form 10-K, as the case may be, in form and substance satisfactory to CF&Co and its counsel, in substantially the forms attached hereto as Exhibit 8(e)(1) (for the sale offirst Settlement Date), pledgeand Exhibit 8(e)(2) (for subsequent dates), make any short sale 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.
(p) On the date of the first Settlement Date under this Agreement and each time that there is filed with the Commission the Company's Annual Report on Form 10-K, the Company shall cause its independent accountants reasonably satisfactory to CF&Co, forthwith to furnish CF&Co letters (the "Comfort Letters"), dated the date of the first Settlement Date under this Agreement or maintain any short positionthe date of filing with the Commission of such Annual Report on Form 10-K, establish or maintain a "put equivalent position" as the case may be, in form and substance satisfactory to CF&Co, (A) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 16a-1(h2-01 of Regulation S-X of the Commission, (B) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings (the first such letter, the "Initial Comfort Letter") and (C) updating the Initial Comfort Letter with any information which would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(q) The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares, or pay anyone any compensation for soliciting purchases of the Placement Shares other than CF&Co. The Company acknowledges and agrees that CF&Co has informed the Company that CF&Co may, to the extent permitted under the Act and the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any purchase and sell shares of the economic consequences of ownership of the Common Stock (whether any such transaction for its own account while this Agreement 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you copies of in effect provided that (i) all reports no such purchase or sales shall take place while a Placement Notice is in effect (except to its stockholders; the extent CF&Co. may engage in sales of Placement Shares purchased or deemed purchased from the Company as a "riskless principal" or in a similar capacity) and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission shall not be deemed to have authorized or consented to any national securities exchangesuch purchases or sales by CF&Co.
Appears in 1 contract
Samples: Sales Agreement (Equity Inns Inc)
Covenants of the Company. The Company covenants with each of you, and agrees with the ------------------------ Agent thateach Underwriter participating in any applicable offering of Offered Securities, as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on the date execution of this each Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement setting forth the principal amount of Initial Offered Securities covered thereby, the terms of such Initial Offered Securities not otherwise specified in the applicable Indenture, the names of the Underwriters participating in the offering and the principal amount of Initial Offered Securities which each severally has agreed to cause purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Initial Offered Securities are to be purchased by the Underwriters from -11- the Company, the initial public offering price (if such Initial Offered Securities are to be offered on a fixed price basis), the selling concession and reallowances, if any, the existence and amount of any over-allotment option, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus as you shall reasonably request.
(b) The Company will notify each of you immediately and confirm the notice in writing, of (i) the effectiveness of the Registration Statement and any amendments thereto to become post-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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effectiveamendment thereto, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the ProspectusProspectus or for additional information, and (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company 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, and will furnish you with copies of any such amendment or supplement or other document a reasonable amount of time prior to such proposed filing or use and will not file any such amendment or supplement or other document or use any such Prospectus to which you or counsel to the Underwriters shall object.
(d) The Company will deliver to you as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as you may reasonably request and will also deliver to each of you a conformed copy of
(e) If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel to the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the initiation, 1933 Act or the threatening1933 Act Regulations, the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission to make the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with you, to qualify the Securities, and, if applicable, the Common Stock into which the Convertible Subordinated Debt Securities are convertible, for offering and sale under the applicable securities laws of any proceedings therefor, (v) such states and other jurisdictions of the receipt United States as you may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities, and, if applicable, Common Stock, have been so qualified, the Company will file such statements and reports as may be required by the laws of any comments from such jurisdiction to continue such qualification in effect for as long as may be required for the Commission and (vi) distribution of the Securities. The Company will promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities or, if applicable, the related Common Stock, for sale in any such state or jurisdiction or the initiation initiating or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the .
(g) The Company will use make generally available to its best efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order security holders as soon as possible. practicable, but not
(h) The Company will not file any amendment to Company, during the Registration Statement or any amendment of or supplement to period when the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would1933 Act, in the judgment of the Agent or the Company, include an untrue statement of a material fact or omit to state any material fact will file promptly all documents required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary 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 prepare and file filed 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 pursuant to the Registration Statement declared effective as soon as possible1934 Act.
(ci) The Company will promptly deliver to you two signed copies of Between the Registration Statement, including exhibits and all amendments thereto, time any Terms Agreement is executed and the Company will promptly deliver to each later of the Agent such number of copies termination of any preliminary prospectus, trading restrictions or the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation Closing Time with you, at or prior respect to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofcovered thereby, the Company will not, and will not permit any without the prior written consent of its affiliatessuch of you as may be named in such Terms Agreement, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 of its debt securities (other than commercial paper or similar instruments sold in the ordinary course of business) or, if such Terms Agreement relates to Convertible Subordinated Debt Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (or any securities convertible into, exercisable for or exchangeable except for Common Stock) Stock issued pursuant to reservations or agreements referred to in the Prospectus or pursuant to any interest therein employee stock option, stock ownership or announce any intention to do any of the foregoing without the prior written consent of the Agentdividend reinvestment plan).
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Samples: Debt Securities Purchase Agreement (Old Kent Financial Corp /Mi/)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriters that the Company:
(ia) If will advise the Registration Statement has not yet been declared effective on Underwriters, promptly after receiving notice thereof, of the date of this Agreement, time when the Company will use its best efforts to cause the Registration Statement Prospectus 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 Supplementary Material has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period filed and Passport Receipts have been obtained and will provide evidence satisfactory to you the Underwriters of each such filing and copies of such timely filing. If Passport Receipts;
(b) will advise the Company elects to rely on Rule 434Underwriters, promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission of any order suspending or preventing the use of the Preliminary Prospectus, the Company will prepare and file a term sheet that complies with Prospectus or any Supplementary Material or suspending or seeking to suspend the requirements trading or distribution of Rule 434.
the Offered Units, Shares, Warrants or Warrant Shares; (ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Offered Units for offering or sale in any jurisdiction of the Qualifying Jurisdictions; (iii) the institution, threatening or the initiation or threatening contemplation of any proceeding for that purpose. If any such purposes; or (iv) any requests made by any Securities Commission for amending or supplementing the Commission shall propose Preliminary Prospectus or enter a stop order at the Prospectus or any timeSupplementary Material or for additional information, the Company and will use its best commercially reasonable efforts to prevent the issuance of any such stop order or any suspension respectively referred to in (i) or (ii) above and, if any such order is issued, to obtain the lifting of such order withdrawal thereof as soon promptly as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, possible or if it shall be necessary at any time such suspension occurs, to amend or supplement the Prospectus or Registration Statement to comply promptly remedy such suspension in accordance with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and 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 Registration Statement declared effective as soon as possible.this Agreement;
(c) The Company will promptly deliver use its commercially reasonable efforts to you two signed copies of the Registration Statement, including exhibits and all amendments theretoremain, and to cause each Subsidiary to remain a corporation validly subsisting under the Company will promptly deliver to each laws of the Agent such number its jurisdiction of copies of any preliminary prospectus, the Prospectus, the Registration Statementincorporation or amalgamation, and all amendments of and supplements to such documentsbe duly licensed, if any, registered or qualified as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at an extra-provincial or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or entity in all jurisdictions where the character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and to execute carry on its business in the ordinary course and in compliance in all material respects with all Applicable Laws of each such jurisdiction, provided that the Company shall not be required to comply with this Section 9(c) following the completion of a general consent merger, amalgamation, arrangement, business combination or take-over bid pursuant to service of process.
(e) The which the Company will make generally available ceases to be a “reporting issuer” (within the meaning of Section 11(aApplicable Securities Laws);
(d) will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Act) to its security holders Laws of each of the Qualifying Jurisdictions which have such a concept and to you as soon as practicable, but not later than 45 days after the end will comply with all of its fiscal quarter in obligations under Applicable Securities Laws, provided that the Company shall not be required to comply with this Section 9(d) following the completion of a merger, amalgamation, arrangement, business combination or take-over bid pursuant to 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 Act Regulations) covering Company ceases to be a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" “reporting issuer” (within the meaning of Rule 16a-1(hApplicable Securities Laws);
(e) will use its commercially reasonable efforts (including, without limitation, making application to the Securities Commissions of each Qualifying Jurisdiction for all consents, orders and approvals necessary) to maintain the listing of the Shares on the CSE or such other recognized stock exchange or quotation system as the Lead Underwriter, on behalf of the Underwriters, may approve, acting reasonably, provided that the Company shall not be required to comply with this Section 9(e) following the completion of a merger, amalgamation, arrangement, business combination or take-over bid pursuant to which the Company ceases to be a “reporting issuer” (within the meaning of Applicable Securities Laws);
(f) will use its commercially reasonable efforts to ensure that the Shares, the Warrant Shares and the Warrants are, when issued, listed and posted for trading on the CSE upon their date of issuance;
(g) will apply the net proceeds from the issue and sale of the Offered Units in accordance with the disclosure set out under the Exchange Act)heading “Use of Proceeds” in the Prospectus;
(h) if so requested by the Underwriters, enter into will deliver to the Underwriters, as soon as practicable after the Preliminary Prospectus is prepared, the U.S. Preliminary Placement Memorandum, and after the Prospectus and any swapSupplementary Material are prepared, derivative transaction the U.S. Placement Memorandum, incorporating the Prospectus or other arrangement that transfers to anotherSupplementary Material, as the case may be, prepared for use in whole or in part, any connection with the distribution of the economic consequences Offered Units to purchasers in the United States in compliance with the provisions of ownership Schedule “A”;
(i) will promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to this Agreement and take all such steps as may be reasonably required within its power to implement to the full extent the provisions, and to satisfy the conditions, of this Agreement;
(j) will on or before the time of filing the Prospectus provide to the Underwriters a copy of the Common Stock conditional listing approval of the Shares, the Warrant Shares and the Compensation Shares on the CSE;
(whether k) will forthwith notify the Underwriters of any such transaction is to be settled by delivery breach of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (covenant of this Agreement or any securities convertible intoAncillary Documents by any party thereto, exercisable for or exchangeable for Common Stock) upon it becoming aware that any representation or warranty of the Company contained in this Agreement or any interest therein Ancillary Document is or announce has become untrue or inaccurate in any intention material respect;
(l) will not, at any time prior to do any the closing of the foregoing Offering, halt the trading of the Shares on the CSE without the prior written consent of the Agent.Lead Underwriter;
(gm) During a period of three years from will use commercially reasonable efforts to cause the effective date directors and officers of the Registration StatementCompany to deliver at the Closing Time on the Closing Date, or, as applicable, the Over-Allotment Closing Date, the agreements contemplated by Section 10(n); and
(n) will make available management of the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed for meetings with investors as scheduled by the Company with Lead Underwriter at the Commission or any national securities exchangediscretion of the Lead Underwriter, acting reasonably.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:: ------------------------
(ia) If It will promptly deliver to the Underwriters a signed copy of the Registration Statement has as originally filed or, to the extent a signed copy is not yet been declared effective on available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to the Underwriters, as soon as practicable after the date of this Agreementhereof, the Company will 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 many copies of the Prospectus is otherwise required under Rule 424(bas of such date as the Underwriters may reasonably request.
(c) or Rule 434, the Company It will file cause the Prospectus (properly completed if Rule 430A has been used) to be filed with the Commission pursuant to Rule 424(b) or Rule 434 within 424 as soon as practicable and advise the prescribed time period and will provide evidence satisfactory to you Underwriters 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) issuance of any request by stop order under the Commission for any amendment of or supplement Securities Act with respect to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, institution of any proceedings therefor, (v) therefor of the receipt of any comments from the Commission and (vi) of the receipt by which the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeshall have received notice. If the Commission shall propose or enter a stop order at any time, the 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, during such period of time (not exceeding nine months) after the Prospectus has been filed with the Commission pursuant to obtain Rule 424 as in the lifting opinion of such Counsel for the Underwriters a prospectus covering the Securities is required by law to be delivered in connection with sales by an Underwriter or a dealer, any event relating to or affecting the Company or of which the Company shall be advised in writing by the Underwriters shall occur that in the Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order as soon as possible. The to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will not file any amendment will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to the Registration Statement Underwriters at the Company's expense a reasonable number of copies of a supplement or any supplements or an amendment of or supplement amendments to the Prospectus or (including the prospectus required to be filed ii) making an appropriate filing pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time Section 13 of the effectiveness of the Registration Statement before Exchange Act, which will supplement or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which amend the Prospectus so that, as then amended supplemented or supplemented wouldamended, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madewhen 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 such Underwriters shall assume the expense of preparing and furnishing any such amendment or if it shall be necessary at supplement. In case any time Underwriter is required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and prepare and file is filed with the Commission an appropriate amendment or supplement (in form and substance satisfactory pursuant to you) which Rule 424, the Company, upon the Underwriter's request, will correct such statement or omission and will use its best efforts to have any amendment furnish to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies Underwriter, at the expense of the Registration StatementUnderwriters, including exhibits and all amendments thereto, and a reasonable quantity of a supplemental prospectus or supplements to the Company will promptly deliver to each Prospectus complying with Section 10(a) of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processSecurities Act.
(e) The Company It will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you holders, 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve 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 StatementStatement as defined in Rule 158 under the Securities Act.
(f) Other than It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Company's issuance Securities for offer and sale under the blue-sky laws of Common Stocksuch jurisdictions as the Underwriters may 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.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) pursuant to any existing employee benefit plansthe preparation and filing by it of the Registration Statement, (ii) upon the exerciseissuance and delivery of the Securities as provided in Section 5 hereof (including, conversion or exchange of any currently outstanding stock options or warrantswithout limitation, all trustee and rating agency fees), (iii) in exchange for shares the qualification of MGV Energythe Securities under blue-sky laws (including counsel fees not to exceed $7,500 and reasonable disbursements of counsel), Inc. currently held by minority shareholders thereof, or and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in a transaction described Section 6(d) hereof, of the Prospectus. The Company shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if this Agreement shall be terminated in Rule 145(a)(2accordance with the provisions of Section 7, 8 or 10 hereof, the Company will reimburse the Underwriters 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 performance of this Agreement. The Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(h) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during [2,3,4 During the period of 90 days from the date hereofof this Agreement to the Closing Date, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, in the effective date market in which the Securities are being offered and sold, any securities of the Registration Statement, the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangeof its subsidiaries which are of the same class as the Securities.]
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees SCM hereby covenant with the ------------------------ Agent thatSUSA as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 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 Company SCM will not file any amendment to the Registration Statement without giving SUSA a reasonable period of time to review such amendment prior to filing or to which SUSA reasonably objects, unless advised by counsel that doing so is required by law. SCM will notify the SUSA immediately, (i) when any amendment to the Registration Statement shall have become effective or any supplement (not including any monthly report) to the Prospectus is filed, (ii) of the receipt of any further comments from the SEC, CFTC, NFA or any other federal or state regulatory or self-regulatory body with respect to the Registration Statement, (iii) of any request by the SEC, CFTC, NFA or any other federal or state regulatory or self-regulatory body for any further amendment to the Registration Statement or any amendment of or supplement to the Prospectus or for additional information relating thereto, (including iv) of any material criminal, civil or administrative proceedings against or involving SCM or the prospectus required to be filed pursuant to Rule 424(b)or Rule 434Company, (v) that differs from of the prospectus on file at issuance by the time SEC, CFTC, NFA or any other federal or state regulatory or self-regulatory body of any order suspending the effectiveness of the Registration Statement before under the 1933 Act, the registration or after NFA membership of SCM as a “commodity pool operator” or the effective date registration of the Registration Statement Units under the Blue Sky or securities laws of any state or other jurisdiction or any order or decree enjoining the offering or the use of the then current Prospectus or any Sales Information or of the institution, or notice of the intended institution, of any action or proceeding for that purpose, or (vi) of any threatened action of the type referred to in clauses (iii) through (v) of which you shall reasonably object SCM is aware. In the event any order of the type referred to in writing after being timely furnished in advance clause (v) is issued, SCM agrees to use best efforts to obtain a copy thereoflifting or rescinding of such order at the earliest feasible date.
(b) If at any SCM will deliver to SUSA as many conformed copies of the Registration Statement as originally filed and of each amendment thereto, together with exhibits, as SUSA may reasonably request, and will also deliver to SUSA such number of conformed copies of the Registration Statement as originally filed and as of each amendment thereto without exhibits as SUSA shall reasonably request.
(c) SCM will deliver to SUSA as promptly as practicable from time to time during the period when a prospectus relating to the Shares Prospectus is required to be delivered under the Securities 1933 Act, such number of copies of the Prospectus (as amended or supplemented) and of the Sales Information as SUSA may reasonably request for the purposes contemplated by the 1933 Act or the 1933 Act Regulations.
(d) SCM will deliver to SUSA: (i) copies of all “Blue Sky” and other state securities law clearances obtained by the Company and (ii) copies of all monthly and annual reports, and of any other communications, sent to the unitholders.
(e) During the period when the Prospectus is required to be delivered pursuant to the 1933 Act, SCM and the Company will comply with all requirements imposed upon them by the 1933 Act, the 1933 Act Regulations, the CEA and the CFTC Rules, as from time to time in force, so far as necessary to permit the continuance of sales of the Units during such period in accordance with the provisions hereof and as set forth in the Prospectus.
(f) If any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment reasonable opinion of SCM or SUSA, to amend or supplement the Agent or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary Prospectus in order (i) to make the statements therein, Prospectus not materially misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a subscriber, or if it (ii) to conform with applicable CFTC or SEC regulations, SCM shall be necessary forthwith prepare and furnish to SUSA, at any time to the expense of SCM, 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 or Registration Statement so as to comply with effect the Securities Act or the Securities Act Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate necessary changes. No such amendment or supplement (in form and substance satisfactory to you) which will correct such statement shall be filed or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing used without the prior written consent approval of the AgentSUSA.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Representative shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representative and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) in accordance with the requirements of the Act.
(d) The Company will not give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Representative 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 to which the Representative or Camhy Karlinsky & Stein LLP ("Underwriters' Counsel") shaxx xxxxxxablx xxxect.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agree that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriters copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(fh) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from five (5) years after the date hereof, the Company will notfurnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and will make available to its stockholders unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the Nasdaq SmallCap Market or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the Company (and any future subsidiaries) or its businesses which the Representative may reasonably request. During such five-year period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or so consolidated.
(i) The Company will maintain a transfer agent (the "put equivalent position" (within the meaning of Rule 16a-1(hTransfer Agent") and, if necessary under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any jurisdiction of incorporation of the economic consequences of ownership of Company, a registrar (which may be the same entity as the transfer agent) for 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 and the foregoing without the prior written consent of the AgentRepresentative's Warrants.
(gj) During a period The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of three years from each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(k) [On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed Lock-up Agreements. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers.]
(l) The Company shall use its best efforts to cause its officers, directors, stockholders or affiliates (within the meaning of the Regulations) not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, unlawful stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities substantially in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Regulations.
(o) The Company shall cause the Securities to be listed on the NASDAQ SmallCap Market, and for a period of two (2) years from the date hereof shall use its best efforts to maintain the listing of the Securities to the extent outstanding.
(p) For a period of two (2) years from the Closing Date, the Company shall furnish to you copies the Representative, at the Company's sole expense, monthly consolidated transfer sheets relating to the, Common Stock and Warrants.
(q) For a period of five (5) years after the effective date of the Registration Statement the Company shall, at the Company's sole expense, take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the Blue Sky laws of those jurisdictions which do not require the Company to qualify as a foreign corporation or to file a general consent to service of process.
(r) The Company (i) prior to the effective date of the Registration Statement, has filed a Form 8-A with the Commission providing for the registration of the Common Stock and Warrants under the Exchange Act and (ii) as soon as practicable, will use its best efforts to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Moody's OTC Manual and to continue such inclusion fxx x xxriod of not less than five (5) years.
(s) [The Company agrees that for a period of nine (9) months following the effective date of the Registration Statement it will not, without the prior written consent of National, offer, issue, sell, contract to sell, grant any option for the sale of or otherwise dispose of any Common Stock, or securities convertible into Common Stock, except for the issuance of the Option Securities, the Representative's Warrants, and shares of Common Stock issued upon the exercise of currently outstanding warrants or options, or options and warrants granted in the ordinary course of business consistent with prior practice.]
(t) Until the completion of the distribution of the Securities, the Company shall not without the prior written consent of National or Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) all reports to its stockholders; five (5) years from the date hereof, and (ii) the sale to the public of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of an appropriate form for the registration under the Act of the Representative's Securities.
(v) The Company agrees that it shall use its best efforts, which shall include, but shall not be limited to, the solicitation of proxies, to elect one (1) designee of National to the Company's Board of Directors for a period of five (5) years following the Closing, provided that such designee is reasonably acceptable to the Company and that such director may be excluded from consideration of certain confidential matters which, in the good faith judgment of a majority of the other directors, such director's presence would not be appropriate.
(w) The Company agrees that within forty-five (45) days after the Closing it shall retain a public relations firm which is reasonably acceptable to National. The Company shall keep such public relations firm, or any replacement, for a period of two (2) years from the Closing. Any replacement public relations firm shall be retained only with the consent of National, which shall not be unreasonably withheld.
(x) The Company agrees that any and all reportsfuture transactions between the Company and its officers, financial statements directors, principal stockholders and proxy the affiliates of the foregoing persons will be on terms no less favorable to the Company than could reasonably be obtained in arm's length transactions with independent third parties, and that any such transactions also be approved by a majority of the Company's outside independent directors disinterested in the transaction.
(y) The Company shall prepare and deliver, at the Company's sole expense, to National within the one hundred and twenty (120) day period after the later of the effective date of the Registration Statement or information statements filed the latest Option Closing Date, as the case may be, one bound volume containing all correspondence with regulatory officials, agreements, documents and all other materials in connection with the offering as requested by the Company with the Commission or any national securities exchangeUnderwriters' Counsel.
Appears in 1 contract
Covenants of the Company. (a) The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If The Company will prepare a prospectus supplement (the Registration Statement "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Shares and additional information concerning the Company and its business in conformity with the Securities Act and the Rules, will file it pursuant to Rule 424(b) of the Rules on or before the second business day after the date of the public offering of the Firm Shares (or such earlier time as may be required by the Rules) (but only if the Underwriter or its counsel has not yet reasonably objected thereto by notice to the Company after having been declared effective furnished a copy a reasonable time prior to filing) and will notify the Underwriter promptly of such filing. The Company will prepare and file a Current Report on Form 8-K including this Agreement as an exhibit thereto.
(ii) For a period of 90 days from the date of this Agreement, the Company will use its best efforts shall promptly advise the Underwriter in writing (A) when any amendment to cause the Registration Statement and any amendments thereto to shall have been filed or become effective as promptly as possible, and if Rule 430A is used or the filing of any subsequent supplement to 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effectivefiled, (iiB) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose and (viD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If the Commission shall propose or enter a stop order at any timeDuring such period, the Company will shall not file any amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished the Underwriter a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(biii) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, therein in the light of the circumstances under which they were made, made 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of paragraph (ii) of this Section 5(a), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission and will use or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its best efforts to have any amendment to the Registration Statement declared effective security holders as soon as possiblepracticable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(cv) The Company will promptly deliver shall furnish to you two the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement, Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments theretothereof and, and so long as delivery of a prospectus by an Underwriter or dealer may be required by the Company will promptly deliver to each Securities Act or the Rules, as many copies of the Agent such number of copies of Prospectus and any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of thereof and supplements to such documents, if any, thereto as you the Underwriter may reasonably request.
(dvi) The Company will endeavor shall reasonably cooperate with the Underwriter and their counsel in good faith, in cooperation with you, at or prior endeavoring to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriter may designate and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(evii) The Company will make generally available (within Without the meaning of Section 11(a) prior written consent of the Securities Act) to its security holders and to you as soon as practicableUnderwriter, 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering for a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from after the date hereofof this Agreement, the Company will notshall not issue, and will not permit sell or register with the Commission (other than on Form S-8 or on any of its affiliatessuccessor form), or otherwise dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any equity securities 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 Company (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do any equity securities of the foregoing without Company), except for (A) the prior written consent issuance of the Agent.
(g) During a period of three years from the effective date of Shares pursuant to the Registration Statement, (B) the issuance of shares pursuant to the Company's existing stock option plans and employee stock purchase plan as described in the Registration Statement and the Prospectus, (C) the registration of the resale of up to 337,925 shares of Common Stock by the former shareholders of Market Solutions Limited and RevenueLab LLC, (D) the issuance of shares of Common Stock to Ramius Securities, LLC ("Ramius") pursuant to the purchase option granted to Ramius in Section 2.6 of the Common Stock Underwriting Agreement dated as of January 4, 2001 between the Company and Ramius and (E) the issuance of shares of Common Stock of the Company in connection with the acquisition of other businesses or entities, or the assets thereof, which acquisitions are approved in advance by the Board of Directors of the Company, provided, that in no event shall the aggregate number of shares of Common Stock issued pursuant to this Section 5(a)(vii)(E) exceed 15% of the shares of Common Stock of the Company outstanding immediately following the closing of the issuance and sale of the Firm Shares. Nothing in this Agreement shall be deemed to require the Company to (x) deregister any shares of Common Stock covered by the Registration Statement but not sold to the Underwriter or (y) terminate its agreements with Ramius.
(viii) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq National Market (including any required registration under the Exchange Act).
(ix) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(x) During the period when the Prospectus is required to be delivered under the Act or the Exchange Act, the Company will furnish file all documents required to you copies be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Rules.
(xi) 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 relevant Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
(b) The Company agrees to pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all reports exhibits thereto, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriter; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 5(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriter in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriter or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in connection with its stockholdersreview of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review (provided, that the Company shall not be required by Section 5(b)(iii) and this Section 5(b)(v) to reimburse the Underwriter for more than an aggregate of $20,000 of counsel fees); (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (iivii) all reportstransfer taxes, financial statements if any, with respect to the sale and proxy or information statements filed delivery of the Shares by the Company with to the Commission Underwriter. Subject to the provisions of Section 8, the Underwriter agrees to pay, whether or any national securities exchangenot the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriter under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iiA) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by not file with the Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus (i) of which W.R. Xxxxxxxxx xxxll not previously have been advised and furnished with a copy a reasonable period of time prior to the proposed filing and as to which filing W.R. Xxxxxxxxx xxxll not have given its consent or (ii) which is not in compliance with the Act or the rules and regulations of the Commission thereunder.
(B) As soon as the Company is advised or obtains knowledge thereof, the Company will advise W.R. Xxxxxxxxx (x) of any request made by the Commission for amendment of the Registration Statement, for supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiationStatement, or the threatening, institution or threat of any proceedings thereforaction, investigation or proceeding for that purpose, or (viii) of the 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 Shares or the Warrants for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the The 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 or withdrawal thereof as soon as possible. .
(C) The Company will not file (i) on or before each date on which a Closing occurs (each such date a "Closing Date" and collectively, the "Closing Dates"), deliver to W.R. Xxxxxxxxx x xigned copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement became effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any amendment to the Registration Statement or (together with, in each case, all exhibits thereto unless previously delivered to W.R. Xxxxxxxxx), (ii) as promptly as possible deliver to W.R. Xxxxxxxxx, xx such office as W.R. Xxxxxxxxx xxx designate, as many copies of the Prospectus as W.R. Xxxxxxxxx xxx reasonably request, and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by W.R. Xxxxxxxxx xx dealers, likewise send to W.R. Xxxxxxxxx xx many additional copies of the Prospectus and as many copies of any amendment of or supplement to the Prospectus (including and of any amended prospectus, filed by the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from Company with the prospectus on file at Commission, as W.R. Xxxxxxxxx xxx reasonably request for the time of purposes contemplated by the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofAct.
(bD) If at any time when (i) during the period in which a prospectus relating to the Shares is required by law to be delivered under by W.R. Xxxxxxxxx xx dealers or (ii) prior to the Securities Act Offering Termination Date any event relating to or affecting the Company, or of which the Company shall have occurred be advised in writing by W.R. Xxxxxxxxx, xxall occur as a result of which it is necessary to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Shares or the Warrants, the Company will, subject to Section 5(a) hereof, forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as then so supplemented or amended or supplemented would, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madeexisting at the time such Prospectus is delivered to such purchaser, 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 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 Registration Statement declared effective as soon as possible.
(c) . The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, authorizes W.R. Xxxxxxxxx xx use the Prospectus, the Registration Statement, and all amendments of and supplements as from time to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithtime amended or supplemented, in cooperation connection with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held Warrants by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.W.R. Xxxxxxxxx
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent CKCC that:
(ia) If the Registration Statement has not yet been declared effective on After the date of this AgreementAgreement and during any period in which a Prospectus relating to any Shares is required to be delivered by CKCC under the Securities Act with respect to a pending sale of the Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its best efforts notify CKCC promptly of the time when any subsequent amendment to cause the Registration Statement and any amendments thereto to Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become effective as promptly as possible, and if Rule 430A is used or the filing of any subsequent supplement to 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 filed 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information.
(b) During any period in which a Prospectus relating to any Shares is required to be delivered by CKCC under the Securities Act with respect to a pending sale of Shares, (iii) the Company will advise CKCC, promptly after it receives notice or obtains knowledge thereof, of the mailing issuance or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto other order preventing or suspending the use of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding for that purpose. If any such purpose or any examination pursuant to Section 8(e) of the Commission shall propose Securities Act, or enter if the Company becomes the subject of a stop order at any time, proceeding under Section 8A of the Securities Act in connection with the offering of the Shares; and the Company will promptly use its best commercially reasonable efforts to prevent the issuance of any such stop or other order and, if issued, or to obtain the lifting of its withdrawal if such a stop or other order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to should be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofissued.
(bc) If at During any time when period in which a prospectus Prospectus relating to the Shares is required to be delivered by CKCC under the Securities Act with respect to a pending sale of the Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement or Prospectus to comply with the Securities Act or the Securities Act RegulationsAct, the Company will promptly notify you CKCC to suspend the offering of Shares during such period and the Company will promptly and prepare and file with the Commission an appropriate amendment amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory at the expense of the Company) so as to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent or effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestcompliance.
(d) The Company will endeavor During any period in good faith, in cooperation with you, at or prior to which the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws Prospectus relating to the offering or Shares is required to be delivered by CKCC under the Securities Act with respect to a pending sale of the Shares of (including in circumstances where such jurisdictions as you requirement may designate and be satisfied pursuant to maintain such qualification in effect for so long as required for Rule 172 under the distribution thereof; except that in no event shall Securities Act), the Company will use its commercially reasonable efforts to cause the Shares to be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processlisted on the Exchange.
(e) The Company will furnish to CKCC and its counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the Shares is required to be delivered under the Securities Act. The copies of the Registration Statement and the Prospectus and any supplements or amendments thereto furnished to CKCC will be identical to the electronically transmitted copies thereof filed with the Commission. Notwithstanding the foregoing, the Company will not be required to furnish any document (other than the Prospectus) to CKCC to the extent such document is available on XXXXX.
(f) The Company will make generally available (within to its security holders as soon as practicable an earnings statement covering a twelve-month period that satisfies the meaning provisions 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 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 Act RegulationsAct. “Earnings statement” and “make generally available” will have the meanings contained in Rule 158 under the Securities Act.
(g) covering a period The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance with the provisions of at least twelve consecutive months beginning after Section 11 hereunder, will pay all expenses incident to the effective date performance of the Company’s obligations hereunder, which the parties acknowledge include expenses relating to: (i) the preparation, printing and filing of the Registration StatementStatement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, and of this Agreement, (ii) the preparation, issuance and delivery of the Shares, (iii) the printing and delivery to CKCC of copies of the Prospectus and any amendments and supplements thereto, (iv) the fees and expenses incurred in connection with the listing or qualification of the Shares for trading on the Exchange, and (v) the filing fees and expenses, if any, of the Commission and FINRA. The Company will pay, within 30 days of the delivery of an invoice in reasonable detail, all reasonable and customary expenses incident to the performance of its obligations hereunder, including attorney’s fees, consultant fees, travel and lodging expenses and any other incidental fees and expenses incurred by CKCC, not to exceed $25,000 in the aggregate.
(fh) Other The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i) During either the pendency of any Placement Notice given hereunder, or any period in which the Prospectus relating to the Shares is required to be delivered by CKCC to any purchasers thereof, the Company shall provide CKCC notice as promptly as reasonably possible before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Shares offered pursuant to the Company's issuance provisions of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection with the (i) issuance, grant or sale of Common Stock, (i) options to purchase shares of Common Stock or Common Stock issuable upon the exercise of options or other equity awards pursuant to any existing employee benefit plans, or director stock option or benefits plan or stock ownership plan or issuances (ii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from time to time or (iii) the issuance of Common Stock upon the exercise, conversion or exchange exercise of any currently outstanding stock warrants, options or warrantsother rights in effect or outstanding and disclosed in filings by the Company available on XXXXX.
(j) The Company will, (iii) in exchange for shares at any time during the pendency of MGV Energya Placement Notice, Inc. currently held by minority shareholders advise CKCC promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document required to be provided to CKCC pursuant to this Agreement.
(ivk) The Company will cooperate with any reasonable due diligence review conducted by CKCC or its agents in a transaction described in Rule 145(a)(2connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as CKCC may reasonably request.
(l) or (3) promulgated under The Company agrees that on such dates as the Securities Act which is exempt from registration shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, within the relevant period, the number of Shares sold through CKCC, the Net Proceeds to the Company and the compensation payable by the Company to CKCC with respect to such Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(m) Three Trading Days prior to the First Delivery Date and each time the Company:
(i) files the Prospectus relating to the Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Shares) the Registration Statement or the Prospectus relating to the Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Shares;
(ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment to the previously filed Form 10-K);
(iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date”), the Company shall furnish CKCC with a certificate, in the form attached hereto as Exhibit 7(m) within three (3) Trading Days of any Representation Date. The requirement to provide a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide CKCC with a certificate under this Section 7(m), then before the Company delivers the Placement Notice or CKCC sells any Shares, the Company shall provide CKCC with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) On the date the first Placement Notice is given hereunder, the Company shall cause to be furnished to CKCC a written opinion, dated as of the date of such Placement Notice, of Xxxxxxxxxxx & Price, LLP (the “Company Counsel”), in a form reasonably acceptable to CKCC and its counsel. Within three (3) Trading Days of each subsequent Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the Company shall cause to be furnished to CKCC a written opinion of Company Counsel in a form reasonably acceptable to CKCC and its counsel.
(o) Three Trading Days prior to the First Delivery Date and three (3) Trading Days prior to each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the Company shall cause its independent accountants (and any other independent accountants whose report is included in the Registration Statement or the Prospectus), to furnish CKCC letters (the “Comfort Letters”) in form and substance satisfactory to CKCC, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act, and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(p) The Company will timely file with the Exchange all material documents and notices required by the Exchange for the Company.
(q) The Company will use its commercially reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act 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.
(r) Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance in writing by the Company and CKCC in its capacity as agent hereunder, neither CKCC nor the Company (including its agents and representatives) will, directly or indirectly, make, use, prepare, authorize, approve or refer to any free writing prospectus relating to the Shares to be sold by CKCC as agent hereunder.
(s) If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Common Stock, it shall promptly notify CKCC and instruct it to suspend sales of the Shares under this Agreement until that or other exemptive provisions have been satisfied in the judgment of each party.
(t) The Company shall maintain, at its expense, a registrar and transfer agent for the Common Stock.
(u) The Company will disclose in its quarterly reports on Form 10-Q and in its annual report on Form 10-K the number of Shares sold through CKCC during the period of 90 days from the date hereof, the relevant quarter.
(v) The Company will not, and will use its commercially reasonable efforts to cause its officers, trustees and affiliates not permit any of its affiliatesto, (i) take, directly or indirectly, any action designed to issuestabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future 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 any of the Shares, (ii) sell, offer bid for, purchase or pay anyone any compensation for soliciting purchases of the Shares during the pendency of any Placement Notice or (iii) pay or agree to sellpay to any person any compensation for soliciting any order to purchase any other securities of the Company during the pendency of any Placement Notice; provided, grant any option however, that upon consent of CKCC the Company may bid for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of and purchase Common Stock in accordance with Rule 16a-1(h) 10b-18 under the Exchange Act.
(w) During any period in which the Prospectus relating to the Shares is required to be delivered by CKCC under the Securities Act with respect to a pending sale of the Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), enter into any swap, derivative transaction or other arrangement the Company will use its commercially reasonable efforts to cause the Shares to be listed on the Exchange.
(x) The Company will ensure that transfers to another, in whole or in part, any there are at all times sufficient shares of the economic consequences of ownership of the Common Stock (whether to provide for the issuance, free of any such transaction is to be settled by delivery preemptive rights, out of its authorized but unissued shares 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 foregoing without the prior written consent of the AgentMaximum Amount.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Samples: Sales Agreement (Royale Energy Inc)
Covenants of the Company. The Company covenants and hereby agrees with the ------------------------ Agent that:
(i) If 6.1 The Company will notify the Registration Managing Broker-Dealer promptly of the time when the Offering Statement or any post-effective amendment to the Offering Statement has not yet become qualified or any supplement to the Offering Statement has been declared effective on the date of this Agreement, the Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblefiled, and if Rule 430A is used of any request by the SEC for any post-effective amendment or supplement to the filing of the Prospectus is otherwise required under Rule 424(b) Offering Statement 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 filingOffering Statement. If the Company elects to rely on Rule 434In addition, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) SEC, promptly upon the Managing Broker- Dealer’s reasonable request, any amendments or supplements to the Offering Statement or Offering Statement that, in the Managing Broker-Dealer’s opinion may be reasonably necessary or advisable in connection with the Offering or the Products. The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when also provide promptly to the Registration Statement and any amendments thereto become effective, (ii) Managing Broker-Dealer copies of any request by correspondence received from the Commission for SEC and advance copies of any correspondence to the SEC (which the Managing Broker-Dealer shall have the right to provide comments to). The Company will provide the Managing Broker-Dealer with an advance copy of any the Offering Statement (including any amendment of or supplement or document incorporated by reference thereto),and provide the Managing Broker-Dealer with the opportunity to provide comments to any such filings.
6.2 The Company will advise the Registration Statement Managing Broker-Dealer, promptly after it shall receive notice or the Prospectus or for any additional informationobtain knowledge thereof, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Offering Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Products for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening receipt of any specific threat of any proceeding for that any such purpose. If the Commission shall propose or enter a stop order at any time, the Company and will use its best commercial reasonable efforts to prevent the issuance of any such stop order and, if any such order is issued, to obtain the lifting of such order removal thereof as soon promptly as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at .
6.3 Within the time of the effectiveness of the Registration during which an Offering Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares Products is required to be delivered under the Securities Act, the Company will use commercially reasonable efforts to comply with all requirements imposed upon it by the Securities Act as promptly as possible, so far as necessary to permit it the continuance of sales of or dealings in the Products as contemplated by the provisions hereof and the Offering Statement. If, during the term of this Agreement, any event shall have occurred or change occurs that is material to the Offering or that causes any of the representations and warranties of the Company contained herein to be untrue in any material respect, or as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, Offering Statement 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 Offering Statement or supplement the Offering Statement to comply with the Securities Act, then the Company will promptly notify the Managing Broker-Dealer, and, if necessary, will amend the Offering Statement or supplement the Offering Statement (at the sole expense of the Company) so as to correct such statement or omission or effect such compliance.
6.4 The Company will furnish to the Managing Broker Dealer copies of the Offering Statement, and all amendments and supplements to such documents (including documents incorporated by reference), in each case as soon as available and in such quantities as the Managing Broker-Dealer and Soliciting Dealers may from time to time reasonably request.
6.5 If at any time any event occurs as a result of which the Offering Statement would include an untrue statement of a material fact or, in view of the circumstances under which they were made, omit to state any material fact necessary to make the statements therein not misleading, the Company will promptly in writing notify the Managing Broker-Dealer thereof, promptly prepare an amendment to the Offering Statement correcting such statement or omission, and promptly deliver to Managing Broker-Dealer as many copies of such amended Offering Statement as Managing Broker-Dealer may reasonably request.
6.6 The Company will deliver to the Managing Broker-Dealer one copy of each report furnished to the Holders at the time that such reports are furnished to the Holders, and such other information concerning Products as may reasonably be requested.
6.7 The Company shall use reasonable efforts in taking all necessary action and filing all necessary forms and documents deemed reasonable by it in order to qualify or register Products for offer and sale under the securities laws of the jurisdictions in which the Managing Broker- Dealer is intending to offer the Products. Notwithstanding the foregoing, the Company may in its sole discretion elect not to qualify or register Products in any jurisdiction in which it deems the qualification or registration unwarranted for any reason. The Company or its counsel shall inform the Managing Broker-Dealer as to the jurisdictions in which the Products have been qualified for sale or are exempt under the respective laws of those jurisdictions. The Company will, at the Managing Broker-Dealer’s request, furnish the Managing Broker-Dealer with copies of all material documents and correspondence sent to or received from such jurisdictions (including, but not limited to, summaries of telephone calls and copies of facsimiles or emails) and will promptly advise the Managing Broker-Dealer as soon as the Company obtains knowledge thereof to the effect that the Products is qualified for offering and sale in each such jurisdiction. The Company will promptly advise the Managing Broker-Dealer of any request made by the securities administrators of each such jurisdiction for revising the Offering Statement or the Offering Statement or for additional information or of the issuance by such securities administrators of any stop order preventing or suspending the use of the Offering Statement or of the institution of any proceedings for that purpose, and will use its commercially reasonable efforts to prevent the issuance of any such order and if any such order is issued, to obtain the removal thereof as promptly as possible.
6.8 In addition to and apart from the Offering Statement, the Company may use certain supplemental sales material in connection with the offering of the Products. This material, prepared by the Company, may consist of sales literature, advertising, or presentations highlighting and explaining various features of the Offering or the Company. Any such sales literature shall be approved by the Managing Broker-Dealer and, to the extent required or otherwise determined by the Managing Broker-Dealer, be filed with and approved by the appropriate securities agencies and bodies and with FINRA. Any and all Approved Sales Literature did not or will not, at the time provided for use, include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if it . Such sales literature 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 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 Registration Statement declared effective categorized as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, either: (i) pursuant “Broker/Dealer Use Only” educational materials, which are, for purposes of this Agreement, materials prepared for or by the Company for the sole purpose of educating the Managing Broker-Dealer or Soliciting Dealers, as the case may be, in preparation to any existing employee benefit planssolicit sales of the Products and shall not be used with members of the general investing public (collectively, “B/D Use Only Approved Sales Literature”), or (ii) upon the exercise“Investor” sales materials, conversion or exchange which are, for purposes of any currently outstanding stock options or warrantsthis Agreement, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 materials prepared for or exchangeable for Common Stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company and may be used by the Managing Broker-Dealer or Soliciting Dealers, as the case may be, with members of the general investing public (collectively, “Investor Use Approved Sales Literature” and, together with the Commission or any national securities exchangeB/D Use Only Approved Sales Literature, the “Approved Sales Literature”).
Appears in 1 contract
Samples: Managing Broker Dealer Agreement (Legion Capital Corp)
Covenants of the Company. (a) The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto thereto, to become effective as promptly as possible, and if Rule 430A is used or the filing of . The Company shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Representatives and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 434 within 430A(a)(3) under 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 434Securities Act.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice shall promptly advise the Representatives in writing)
writing (i) when the Registration Statement and any amendments amendment thereto shall have become effective, (ii) of the receipt of any comments from the Commission or of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing prevention or suspension of the use of any Preliminary Prospectus or the delivery to the Commission for filing of any amendment of Prospectus or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness effective ness of the Registration Statement or any post-effective amendment thereto or the suspension of qualification of the initiation, Shares for offering or sale in any jurisdiction or the threatening, institution or threatening of any proceedings thereforproceeding for that purpose, (v) of the receipt of any comments from the Commission and (viiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall give notice to the Commission shall propose Representatives of its intent to file any amendment of the Registration Statement or enter a stop order at any time, supplement to the Prospectus and the Company will shall not file any such amendment or supplement unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order or order suspending the qualification or exemption of the Shares under any state securities or Blue Sky laws and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(biii) If The Company shall promptly advise the Representatives in writing if, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules or the Exchange Act, any change, event, or occurrence which could result in such a change, in the Company's condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company or the happening of any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of paragraph (ii) of this Section 6(a), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and will use its best efforts to have any amendment to the Registration Statement declared effective Representatives as soon as possiblepracticable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(cv) The Company will promptly deliver shall furnish to you two the Representatives and counsel for the Underwriters, without charge, as many signed copies of the Registration Statement, Statement (including all exhibits thereto and amendments thereof) as the Representatives may reasonably request and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments theretothereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. If applicable, the copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Under writers will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(vi) During the period of five years hereafter, the Company will promptly deliver to furnish the Representatives (i) as soon as available, a copy of each report of the Agent such number of copies of any preliminary prospectus, Company mailed to stockholders or filed with the Prospectus, the Registration StatementCommission, and all amendments of and supplements (ii) from time to time such documents, if any, other information concerning the Company as you the Representatives may reasonably request.
(dvii) The Company will endeavor shall cooperate with the Representatives and their counsel in good faith, in cooperation with you, at or prior endeavoring to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Representatives may designate and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(eviii) The Company will make generally available (within Company, during the meaning of Section 11(a) of period when the Securities Act) Prospectus is required 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 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated be delivered under the Securities Act which is exempt from registration under and the Securities Rules or the Exchange Act, during will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(ix) Except as set forth on Schedule II hereto, without the prior written consent of CIBC World Markets Corp., for a period of 90 180 days from after the date hereofof the Prospectus, the Company will not, and will not permit any each of its affiliatesindividual directors and executive officers shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any equity securities 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 Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plans as described in the Registration Statement and the Prospectus. In the event that during this period, (i) any shares are issued pursuant to the Company's existing stock option plans that are exercis able during such 180 day period or (ii) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of the Prospectus, such person will not, without the prior written consent of CIBC World Markets Corp., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(x) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq National Market (including any required registration under the Exchange Act).
(xi) The Company has furnished or will furnish to the Representatives the Lock-up Agreements, in form and substance satisfactory to the Representatives, signed by each of its current officers and directors and each of its stockholders (except for certain stockholders that own individually less than 1% and in the aggregate less than 5% of the Company's Common Stock) designated by the Representatives.
(xii) For a period of 180 days from the date hereof, the Company will not waive, modify or amend or otherwise release Novartis AG from its obligations under the sale restrictions contained in Section 5 of the Stock Purchase Agreement, dated as of May 11, 1990, by and between the Company and Novartis AG, without the prior written consent of CIBC World Markets Corp.
(xiii) The Company will supply the Underwrit ers with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act.
(xiv) Prior to the Closing Date, the Company shall furnish to the Underwriters, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries, for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(xv) Prior to the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any interest therein of its Subsidiaries, the condition, financial or announce any intention to do otherwise, or the earnings, business affairs or business prospects of any of them, or the foregoing offering of the Shares without the prior written consent of the AgentRepresentatives unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(gxvi) During a period of three years The Company will apply the net proceeds from the effective date offering of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(xvii) The Company has not taken, nor will it take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipula tion of the price of the Common Stock to facilitate the sale or resale of the Shares.
(xviii) The Company will use its best efforts to maintain the quotation of the Common Stock (including the Shares) on the Nasdaq National Market and will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have shares that are traded in the over-the- counter market and quotations for which are reported by the Nasdaq National Market.
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration StatementStatement including all exhibits thereto, each Preliminary Prospectus, the Company will furnish Prospectus, all amendments and supplements to you the Registration Statement and the Prospectus, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 6(a)(vi), if any, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (iv) all reports to the filing fees of the NASD in connection with its stockholdersreview of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (iivii) all reportstransfer taxes, financial statements if any, with respect to the sale and proxy or information statements filed delivery of the Shares by the Company with to the Commission Underwriters. Subject to the provisions of Section 9, the Underwriters agree to pay, whether or any national securities exchangenot the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwrit ers.
Appears in 1 contract
Samples: Underwriting Agreement (Tanox Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatRepresentatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on execution of the date of this Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement setting forth the principal amount of Senior Securities covered thereby and their terms not otherwise specified in the Senior Indenture, pursuant to cause which the Registration Statement Senior Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Senior Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, any amendments thereto to become effective as promptly as possibledelayed delivery arrangements, and if Rule 430A is used or such other information as the filing Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities. The Company will promptly transmit copies of the Prospectus to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement and such Prospectus as the Representatives shall reasonably request.
(b) At any time when the Prospectus is otherwise required under Rule 424(b) or Rule 434by the 1933 Act to be delivered in connection with sales of the Underwritten Securities, the Company will file notify the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period Representatives immediately, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, of (i) when the effectiveness of any amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement Statement, the Prospectus or any supplement to the Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order presenting or suspending the use of the initiationany preliminary prospectus supplement, or the threatening, of any proceedings therefor, (v) of the 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 Shares Underwritten Securities for offering or sale in any jurisdiction jurisdiction, or of the initiation institution or threatening of any proceeding for that purposeany such purposes. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any stop order is issued, to obtain the lifting of such order as soon as possible. thereof at the earliest possible moment.
(c) The Company has furnished or will not file any amendment furnish to the Registration Statement or any amendment of or supplement to Representatives and counsel for the Prospectus Representatives, without charge, as many copies (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434at least one signed copy) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after the effective date Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 and Rule 412) and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(bd) If The Company will comply in all material respects with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Underwritten Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus relating to the Shares is required by the 1933 Act or the 1933 Regulations to be delivered under in connection with sales of the Securities Act Underwritten Securities, any event shall have occurred occur or condition exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and upon becoming aware of such event or condition prepare and file with the Commission an appropriate such amendment or supplement (in form and substance satisfactory supplement, whether by filing documents pursuant to you) which will the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent Prospectus comply with such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processrequirements.
(e) The Company will use its best efforts in cooperation with the Underwriters to qualify the Underwritten Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will use its best efforts in cooperation with the Underwriters to maintain such qualifications in effect for as long as may be required for the distribution of the Underwritten Securities. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities have been qualified as above provided. The Company will also supply the Representatives with such information as is necessary for the determination of the legality of the Underwritten Securities for investment under the laws of such jurisdictions as the Representatives may request.
(f) With respect to each sale of Underwritten Securities, the Company will make generally available (within the 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 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date period covered thereby, earning statements of the Registration Statement occurs, an earnings statement Company (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a period of at least twelve consecutive 12 months beginning after beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date date" (as defined in Rule 158) of the Registration StatementStatement relating to Underwritten Securities.
(fg) Other than The Company will use the Company's issuance net proceeds received by it from the sale of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) Underwritten Securities in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) the manner specified in a transaction described in Rule 145(a)(2) or (3) promulgated the Prospectus under the Securities Act which is exempt from registration under the Securities Actcaption "Use of Proceeds."
(h) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act in connection with the sale of 90 days from the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the date hereofof the Terms Agreement or the Closing Time with respect to the Underwritten Securities covered thereby, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sellwithout the Representatives' prior consent, offer or agree sell, or enter into any agreement to sell, grant any option for debt securities issued or guaranteed by the sale of, pledge, make Company with a maturity of more than one year in any short sale or maintain any short position, establish or maintain a "put equivalent position" public offering (within other than the meaning of Rule 16a-1(h) under the Exchange ActUnderwritten Securities), enter into any swap, derivative transaction or other arrangement that transfers including additional Senior Securities. This limitation is not applicable to another, in whole or in part, any the public offering of tax-exempt securities guaranteed by 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 foregoing without the prior written consent of the AgentCompany.
(gj) During a period of three years from At any time when the effective date Prospectus is required by the 1933 Act to be delivered in connection with sales of the Registration StatementUnderwritten Securities, the Company will give the Representatives notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement or other documents proposed to you copies be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object in writing.
(k) If the Company elects to rely upon Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i) all reports to its stockholders; 10:00 P.M. Eastern time on the date of the Terms Agreement and (ii) all reportsthe time confirmations are sent or given, financial statements and proxy or information statements filed as specified by the Company with the Commission or any national securities exchangeRule 462(b).
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatseveral Underwriters as follows:
(ia) If If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has not yet been or a post-effective amendment thereto to be declared effective on before the date offering of this Agreementthe Shares may commence, the Company will use its best efforts endeavor to cause the Registration Statement and any amendments thereto or such post-effective amendment to become effective as promptly soon 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 possible and will provide evidence satisfactory to advise 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.
(ii) The Company will notify you immediately (promptly and, if requested by you, will confirm such notice advice in writing)
(i) , when the Registration Statement and any amendments thereto or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (iii) of any request by the Commission for any amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus or for any additional information, ; (ii) of receipt of any comments or other communications from the Commission; (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose; and (iv) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall propose or enter a issue any stop order at any timesuspending the effectiveness of the Registration Statement, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, make every reasonable effort to obtain the lifting withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, three (3) signed copies of the registration statement as soon originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the registration statement as possible. originally filed and of each amendment thereto, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the Registration Statement or make any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before which you shall not previously have been advised or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished so advised or (ii) so long as, in advance the opinion of counsel for the Underwriters, a copy thereof.
(b) If at any time when a prospectus relating to the Shares Prospectus is required to be delivered under in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a copy of such information, documents or reports to you, as Representatives of the Underwriters, prior to or concurrently with such filing.
(e) 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.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) 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 all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, occur that in the judgment of the Agent Company or in the Company, include an untrue statement opinion of a material fact or omit to state any material fact counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to supplement or amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulationsany other law, the Company will notify you promptly and forthwith prepare and and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto, and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed 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 Registration Statement declared effective as soon as possiblesupplement.
(cg) The Company will promptly deliver to cooperate with you two signed copies and with counsel for the Underwriters in connection with the registration or qualification of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and will file such consents to maintain service of process or other documents necessary or appropriate in order to effect such qualification in effect for so long as required for the distribution thereofregistration or qualification; except provided that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to execute a general consent take any action which would subject it to service of processprocess 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. The Company will, from time to time, prepare and file such statements, reports and other documents, as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for distribution of the Shares.
(eh) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicablea consolidated earnings statement, but which need not later than 45 days be audited, covering a twelve-month period commencing after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occursand ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement (in form complying with shall satisfy the provisions of Rule 158 Section 11(a) of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration StatementAct.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three five years from the effective date of the Registration Statementhereafter, the Company will furnish to you copies of (i) all reports as soon as available, a copy of each report of the Company mailed to its stockholders; shareholders or filed with the Commission or the Nasdaq National Market, and (ii) all reports, financial statements and proxy from time to time such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or information statements filed shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Shareholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company shall apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not (i) sell, pledge, offer to sell, solicit an offer to buy, contract to sell, grant any option, right or warrant to purchase, sell any option or contract to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock (other than the Shares to be sold by it), or any national securities exchangeconvertible into or exercisable or exchangeable for Class A Common Stock, (ii) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, or (iii) make any demand for or exercise any right with respect to the registration of any shares of Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, for a period of 180 days after the date of the Prospectus, without the prior written consent of Smitx Xxxxxx Xxx., except that the Company may grant options and other awards to its employees pursuant to the Company's 1997 Incentive Plan, as such plan exists on the date of the Prospectus, and may issue shares of Common Stock issuable upon the exercise of options and other awards granted under such plan which are outstanding on the date of the Prospectus.
(n) The Company has furnished to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its shareholders designated by you.
(o) 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 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.
(p) The Company will use its best efforts to have the Class A Common Stock listed, subject to notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the registration statement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 comply with the requirements of Rule 434.
(ii) The Company 430A and will notify you immediately (andthe Underwriters immediately, if requested by you, will and confirm such the notice in writing)
, (i) when any post-effective amendment to the Registration Statement and any amendments thereto shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission on the Registration Statement, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings thereforfor that purpose, and (v) of the 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 Shares Securities for offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding proceedings for that any such purpose. If The Company will promptly effect the filings necessary pursuant to Rule 424(b) 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 by the Commission shall propose or enter a stop order at any timeand, in the event that it was not, it will promptly file such prospectus. 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 the lifting of such order as soon as possible. thereof at the earliest possible moment.
(b) The Company will not give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment of or supplement to the Prospectus (including either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters 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 the Underwriters or counsel for the Underwriters shall reasonably object, provided that such objection shall not prevent the filing of any such amendment or supplement which, in the opinion of counsel for the Company, is required to be filed pursuant to Rule 424(b)or Rule 434) that differs from by the prospectus on file at the time requirements of the effectiveness 1933 Act or the 1933 Act Regulations.
(c) The Company will deliver to each Underwriters a signed copy of the Registration Statement before as originally filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and will also deliver to the effective date Underwriters as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (without exhibits) as the Underwriters may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(bd) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder; provided that in the event that an Underwriter is required to deliver a Prospectus in connection with sales of any of the Securities at any time nine months or more after the time of issuance of the Prospectus, upon the request of such Underwriter but at its expense, the Company will prepare and deliver to such Underwriter as many copies as it may request of a Prospectus (as amended or supplemented) complying with Section 10(a)(3) of the 1933 Act. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus relating to the Shares is required by the 1933 Act to be delivered under in connection with sales of the Securities Act Securities, any event shall have occurred occur or condition shall exist as a result of which it is necessary, to amend the Registration Statement or amend or supplement the Prospectus as then amended or supplemented would, in order that the judgment of the Agent or the Company, Prospectus will not include an any untrue statement statements 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, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate Commission, subject to Section 3(b), such amendment or supplement (in form and substance satisfactory as may be necessary to you) which will correct such statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of or the Registration Statement, including exhibits and all amendments theretoProspectus comply with such requirements, and the Company will promptly deliver furnish to each of the Agent Underwriters such number of copies of any preliminary prospectus, such amendment or supplement as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(df) The Company will endeavor in good faithendeavor, in cooperation with youthe Underwriters, at or prior to qualify the time Securities and the Shares of effectiveness Common Stock issuable upon conversion of the Registration Statement, to qualify, if necessary, the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereofdesignate; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of processprocess in any jurisdiction. In each jurisdiction in which the Securities or such Shares of Common Stock have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as it may be required to complete the distribution of such Securities.
(eg) The Company will timely file such reports pursuant to the 1934 Act as are necessary to make generally available (within to its security holders as soon as practicable an earnings statement for the meaning purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities 1933 Act.
(h) to its security holders and to you as soon as practicable, but not later than 45 days after The Company will use the end of its fiscal quarter in which net proceeds received by it from 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 sale of the Securities Act Regulationsin the manner specified in the Prospectus under "Use of Proceeds".
(i) covering The Company will file with the National Association of Securities Dealers ("NASD") all documents and notices required by the NASD of companies that have issued securities that are traded in the over-the- counter market and quotations for which are reported by the National Association of Securities Dealers Automated Quotation System-National Market System.
(j) The Company will not, without the prior written consent of Xxxxxxx Xxxxx, contract to sell or announce or make any offering, sale or other disposition of any debt securities of the Company having a maturity greater than one year during the period beginning from the date of this Agreement and continuing through the earlier of the termination of trading restrictions with respect to the Securities, as notified to the Company by you, or the Closing Time.
(k) During a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 120 days from the date hereofof the Prospectus, the Company will not, and will not permit any without the prior written consent of its affiliatesXxxxxxx Xxxxx, (i) directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 security convertible into, or exchangeable into or exercisable for Common Stock (except for Debentures issued pursuant to this Agreement or Common Stock issued pursuant to the Company's employee or director stock option plans, upon exercise or conversion of outstanding options or warrants or convertible debt described in the Prospectus or in connection with acquisitions or currently effective shelf registration statements (provided that the number of shares of Common Stock issued in connection with such acquisitions or such registration statements does not exceed 1,000,000)) or (ii) file any registration statement under the 1933 Act to register the offer or sale of any shares of Common Stock or any security convertible or exchangeable into or exercisable for Common Stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agent.
(gl) During The Company will use its best efforts to have the Securities quoted on the Nasdaq Small Cap Market and the shares of Common Stock issuable upon conversion of Securities quoted on the Nasdaq National Market (or listed on a period national securities exchange) and to cause the Securities to be registered under the 0000 Xxx.
(m) The Company will reserve and keep available at all times, free of three years from preemptive rights, shares of Common Stock for the effective date purpose of the Registration Statement, enabling the Company to satisfy any obligations to issue Common Stock upon conversion of Securities.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will furnish file all documents required to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements be filed by the Company with the Commission pursuant to Section 13, 14 or any national securities exchange15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:Underwriter as follows: 11
(ia) If Promptly following the Registration Statement has not yet been declared effective on the date execution of this Agreement, the Company will use its best efforts prepare a prospectus supplement setting forth the terms of such Shares not otherwise specified in the Prospectus, the price at which the Shares are to cause be purchased by the Registration Statement and any amendments thereto to become effective as promptly as possibleUnderwriter from the Company, and if Rule 430A is used or such other information as you and the filing Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Shares. The Company will file promptly transmit copies of the Prospectus (properly completed if Rule 430A has been used) prospectus supplement to the Commission for filing pursuant to Rule 424(b) or Rule 434 within of the prescribed time period 1933 Act Regulations and will provide evidence satisfactory furnish to you the Underwriter as many copies of the Prospectus and such timely filing. If prospectus supplement as the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Underwriter shall reasonably request.
(iib) The Company will notify you immediately (andthe Underwriter immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any amendment to the Registration Statement and Statement, or when any amendments thereto become effectivesupplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any preliminary prospectus supplement, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for that purposeany of such purposes. If the Commission shall propose or enter a stop order at any time, the 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 the lifting of such order as soon as possiblethereof at the earliest possible moment. The If the Company elects to rely on Rule 434, the Company will not provide the Underwriter with copies of the form of Rule 434 Prospectus, in such number as the Underwriter may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of this Agreement.
(c) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Shares, the Company will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use by the Underwriter in connection with the offering of the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the effectiveness 1933 Act Regulations or any term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will furnish the Underwriter 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 the Underwriter or counsel for the Underwriter shall reasonably object.
(d) The Company has furnished or will deliver to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement before as 12 originally filed and of each amendment thereto (including exhibits filed therewith or after incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the effective date Underwriter a conformed copy of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofas originally filed and of each amendment thereto (without exhibits) for the Underwriter.
(be) If at any time when a prospectus relating The Company will furnish to the Shares Underwriter, without charge, from time to time during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) If any event shall have occurred occur or condition shall exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriter or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an any untrue statement statements 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, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus or Registration Statement in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate Commission, subject to Section 3(b), such amendment or supplement (in form and substance satisfactory as may be necessary to you) which will correct such statement or omission and will use its best efforts or to have any amendment to make the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of or the Registration Statement, including exhibits and all amendments theretoProspectus comply with such requirements, and the Company will promptly deliver furnish to each of the Agent Underwriter such number of copies of any preliminary prospectus, such amendment or supplement as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriter may reasonably request.
(dg) The Company will endeavor in good faithuse its best efforts, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriter, to qualify, if necessary, qualify the Shares for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you the Underwriter may designate and to maintain such qualification qualifications in effect for so long as required for a period of not less than one year from the distribution thereofeffective date of the Registration Statement; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to execute subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Shares have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eh) The Company will make generally available (within the 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 90 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities 1933 Act Regulations) covering a twelve month period beginning not later than the first day 13 of at least twelve consecutive months beginning after the Company's fiscal quarter next following the "effective date date" (as defined in said Rule 158) of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant In accordance with the Cuba Act and without limitation to the provisions of Sections 6 and 7 hereof, the Company agrees to indemnify and hold harmless the Underwriter from and against any existing employee benefit plansand all loss, liability, claim, damage and expense whatsoever (ii) upon the exerciseincluding fees and disbursements of counsel), conversion or exchange as incurred, arising out of any currently outstanding stock options or warrants, violation by the Company of the Cuba Act.
(iiij) The Company will use the net proceeds received by it from the sale of the Shares in exchange for shares the manner specified in the Prospectus under "Use of MGV Energy, Inc. currently held by minority shareholders thereof, or Proceeds."
(ivk) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities ActThe Company, during the period of 90 days from when the date hereofProspectus, is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will not, and will not permit any of its affiliatesit take, directly or indirectly, any action designed to issue, sell, offer or agree that might reasonably be expected to sell, grant any option for the sale of, pledge, make any short sale cause or maintain any short position, establish result in stabilization or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences of ownership price of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash facilitate the sale 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 resale of the foregoing without the prior written consent of the AgentShares.
(gm) During a period of three years from the effective date of the Registration Statement, the The Company will furnish use its best efforts to you copies have the shares of (i) all reports Common Stock which it agrees to its stockholders; and (ii) all reportssell under this Agreement listed, financial statements and proxy subject to notice of issuance, on the New York Stock Exchange on or information statements filed by before the Company with the Commission or any national securities exchangeClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Franchise Finance Corp of America)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment of or supplement to the Registration Statement or the ProspectusProspectus or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be delivered under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement or the Prospectus, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any post-effective amendment to the Registration Statement or use any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement Securities Act Regulations) to which you the Representatives or counsel for the Underwriters shall reasonably object in writing after being timely furnished in advance object, and will furnish the Representatives with copies of any such amendment or supplement a copy thereofreasonable amount of time prior to such proposed filing or use, as the case may be.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred occur as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent Underwriters or the Company, Company 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, in the light of the circumstances under which they were made, 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 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 or which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possibleeffect such compliance.
(c) The Company will promptly deliver has delivered to each of you two one signed copies copy of the Registration StatementStatement as originally filed, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters, from time to time during the period that the Prospectus is required to be delivered under the Securities Act or the Exchange Act, such number of copies of any preliminary prospectus, the Prospectus, Prospectus and the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except PROVIDED, HOWEVER, 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.
(e) The Company will make generally available (within the 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 end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occursoccurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), 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 StatementStatement (as defined in Rule 158(c) of the Securities Act Regulations).
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 180 days from the date hereofof the Prospectus, the Company will not, and will not permit any of its affiliates, directly or indirectlyindirectly without your prior written consent, to issue, sell, offer or agree to sell, grant any option for the sale to purchase, or otherwise dispose (or announce any offer, sale, grant of an option to purchase or other disposition) of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning shares of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether or any such transaction is to be settled by delivery securities convertible into, exchangeable or exercisable for shares of Common Stock), other securitiesthan the Company's sale of Shares hereunder, cash the Company's issuance of Common Stock upon the exercise of presently outstanding stock options and the grant of options under the Company's 1997 Stock Incentive Plan.
(g) The Company will obtain the undertaking of each of its officers and directors, the Manager and its officers and directors, the purchasers in the private placement described in the Prospectus under the caption "Private Placement," and such other persons as have been heretofore designated by you and listed on Schedule II attached hereto that, during the period of 180 days (or other considerationsuch shorter period as expressly agreed to by Bear Xxxxxxx) from the date of the Prospectus, each of them will not, directly or indirectly, without your prior written consent, issue, sell, offer or agree to sell, grant any option to purchase, or otherwise dispose (or announce any offer, sale, grant of an option to purchase or other disposition) of, any shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for shares of Common Stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agent).
(gh) During a period of three years from the effective date of the Registration StatementProspectus, the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangeexchange or quotation system.
(i) The Company will apply the proceeds from the sale of the Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) If the Company elects to rely upon Rule 462(b) of the Securities Act Regulations, the Company shall file the Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Securities Act Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing, either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Securities Act Regulations.
(k) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(l) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(m) The Company will continue to meet the requirements to qualify as a REIT and will not revoke its election to be a REIT unless and until the Board determines that such revocation is advantageous to the Company.
(n) The Company will use its best efforts to effect the quotation of the Common Shares on the NYSE.
Appears in 1 contract
Samples: Underwriting Agreement (Laser Mortgage Management Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent you that:
(ia) If It will cooperate in all respects in making the Registration Statement has Prospectus effective and will not yet 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 declared effective on 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 date of this AgreementAct and the Rules and Regulations or applicable state law. As soon as the Company is advised thereof, the Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possibleadvise you, and if Rule 430A is used or confirm the filing advice in writing, of the Prospectus is otherwise required under Rule 424(b) receipt of any comments of the Commission or Rule 434any state securities department, 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effectivebecomes effective if the provisions of Rule 430A promulgated under the Act will be relied upon, (ii) when the Prospectus has been filed in accordance with said Rule 430A, of the effectiveness of any request by the Commission for any posteffective 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 any additional information, (iii) supplementing of the mailing Prospectus or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectusadditional information with respect thereto, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Prospectus or any post-effective amendment thereto order preventing or suspending the use of any Prospectus or any order suspending trading in the Common Stock of the Company, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities, the Option Securities or the Representatives Securities for sale offering in any jurisdiction jurisdiction, or of the initiation or threatening institution of any proceeding proceedings for that purpose. If the Commission shall propose or enter a stop order at any timesuch purposes, the Company and will use its best efforts to prevent the issuance of any such stop 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 order 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 soon 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 will not shall file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including in form and substance satisfactory to the prospectus required Underwriter) or transmit the Prospectus by a means reasonably calculated to be filed result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to Rule 424(b)or Rule 434424(b)(3) that differs from not later than the prospectus Commission's close of business on file at the time earlier of (i) the effectiveness second business day following the execution and delivery of this Agreement, and (ii) the Registration Statement before or fifth business day after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Statement. In case of the happening, at any time when within such period as a prospectus relating to the Shares Prospectus is required under the Act to be delivered under in connection with the initial sale of the Securities, the Option Securities Act and the Representative's Securities of any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or Company has knowledge and which materially affects the Company, include 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, therein not misleading in the light of the circumstances under which they were are made, not misleading, or if it shall be necessary at . The preparation and furnishing of any time to amend such amendment or supplement to the Prospectus or Registration Statement 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 Act or and the Representatives Securities Act under the Act, the Rules and Regulations, the Company will notify you promptly and 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 Registration Statement declared effective as soon as possibleapplicable state securities laws.
(cb) The Company It will promptly deliver cooperate to you two signed copies of qualify the Registration Statement, including exhibits and all amendments thereto, Securities and the Company will promptly deliver to each of Option Securities and the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Representative's Securities for offering and 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 maintain 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 required for the distribution thereof; except that Underwriter may reasonably request.
(c) So long as any of the Securities, the Option Securities or the Representative's Securities remain outstanding in no event shall 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 be obligated as at the end of such fiscal year, together with statements of operations, shareholders' equity, and changes in connection therewith 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 qualify you at or before the Initial Closing Date three signed 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 foreign corporation 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 execute a general consent to service of processtime reasonably request.
(e) The Company will make generally available (within apply the meaning of Section 11(a) net proceeds from the sale of the Securities Actand 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) to its security holders and to you as 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 anniversary date (lst) day of the fifteenth (15th) full calendar month following the effective date of the Registration Statement occursStatement, the Company will make available to its security holders and the Underwriter an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement.
(f, which shall satisfy the requirements of Section 11(a) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership Act and Rule 158(a) 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 foregoing without the prior written consent of the AgentRules and Regulations.
(g) During a period of three years Non-Accountable Expense Allowance and other Costs and Expenses. The Company shall pay to the Underwriter at each closing date, and to be deducted from the effective date purchase price for the Securities and the Option Securities, an amount equal to three percent (3%) of the Registration Statementgross proceeds received by the Company from the sale of the Securities and the Option Securities at such closing date less in the case of the Initial Closing Date, the Company will furnish sum of $50,000 previously paid by the Company. If the sale of the Securities by the Underwriter is not consummated for any reason not attributable to you copies of the Underwriter, or if (i) all reports to its stockholders; and the Company withdraws the Registration Statement from the Commission or does not proceed with the public offering, 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 reports, financial statements and proxy or information statements filed as determined by the Underwriter, then the Company with shall reimburse the Commission or Underwriter for its out of pocket expenses including without limitation, its legal fees and disbursements all on an accountable basis but not to exceed $100,000 (less the $50,000 previously paid by the Company), and if any national securities exchangeexcess remains from the advance previously paid, such excess will be returned to the Company.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement as filed, or the related Prospectus, prior to each Closing Date, and any amendments thereto become effective, (ii) of any request by the Commission for any will not effect such amendment of or supplement to without the Underwriters' consent which will not be unreasonably withheld; the Company will also advise the Underwriters promptly of the effectiveness of the Registration Statement or (if the Prospectus or for any additional information, (iii) of the mailing or the delivery Effective Time is subsequent to the Commission for filing execution and delivery of this Agreement), of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) and of receipt of notification of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any prospectus relating to the initiation, or the threateningShares, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If , or of any request by the Commission shall propose to amend or enter a stop order at any time, supplement the Company Registration Statement or Prospectus or for additional information and will use its best efforts to prevent the issuance of any such stop order andor of any order preventing or suspending the use of any prospectus relating to the Shares or suspending any such qualification and to obtain as soon as possible its lifting, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act Act, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Companyeither Underwriter, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act Act, or the Securities Act Regulationsany other law, the Company promptly will notify you promptly and 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 or an amendment which will effect such compliance and will use its best efforts to have any amendment notify the Underwriters and, upon either Underwriter's request prepare and furnish without charge to the Registration Statement declared effective Underwriters and to any dealer in securities as soon many copies as possiblethe Underwriters may from time to time reasonably request, of an amended Prospectus or a supplement to the Prospectus complying with Section 8(a) of the Act which will correct such statement or omission or effect such compliance.
(c) The Company will promptly deliver to you two each Underwriter as many signed and conformed copies of the Registration Statement, Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith and all amendments thereto, documents incorporated therein by reference) as such Underwriter may reasonably request and the Company will promptly also deliver to each the Underwriters a conformed copy of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, Statement and all amendments of and supplements to such documents, if any, as you may reasonably requesteach amendment thereto (including documents incorporated therein by reference).
(d) The Company will endeavor in good faith, in cooperation with you, at or prior take such action as either Underwriter may reasonably request to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering and sale under the applicable securities laws relating to the offering or sale of such states and other jurisdictions of the Shares of such jurisdictions United States as you either Underwriter may designate designate, and to will maintain such qualification qualifications in effect for so as long as may be required for the distribution thereof; except that of the Shares. The Company will file such statements and reports as may be required by the laws of each jurisdiction in no event shall which the Company be obligated in connection therewith to qualify Shares have been qualified as a foreign corporation or to execute a general consent to service of processabove provided.
(e) The Company will make generally available (within During the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statementhereafter, the Company will furnish to you copies the Underwriters as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, and the Company will furnish to the Underwriters (i) all reports as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or mailed to its stockholders; shareholders, and (ii) all reportsfrom time to time, financial statements and proxy or such other information statements filed by concerning the Company as either Underwriter may reasonably request.
(f) The Company, during the period when the Prospectus relating to the Shares is required to be delivered under the Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13, 14 or any national securities exchange15 of the Exchange Act.
(g) The Company currently has, and will continue to use its best efforts to maintain, the listing of its Common Stock, which represent the stock underlying the Shares if converted, on the Nasdaq Small Cap Market.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent several Underwriters that:
(ia) If the effective time of the Registration Statement has is not yet been declared effective on prior to the date execution and delivery of this Agreement, the Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possibleat the earliest possible time and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Representatives and if 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 is used or 430A, the filing Company, at the earliest possible time, will furnish the Representatives with a copy of the Prospectus is otherwise required under to be filed by the Company with the Commission to comply with Rule 424(b) or and Rule 434430A under the Act and, if the Representatives do not object to the contents thereof, will comply with such Rules. Upon compliance with such Rules, the Company will file so advise 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 filingRepresentatives promptly. 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 you immediately (andadvise the Representatives, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement counsel to the Registration Statement or Underwriters and the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) Attorneys-in-Fact promptly of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, institution of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company or of any notification with respect to of the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding proceedings for that purpose. If , and will also advise the Representatives, counsel to the Underwriters and the Attorneys-in-Fact promptly of any request of the Commission shall propose for amendment or enter a stop order at any timesupplement of the Registration Statement, the Company will use its best efforts to prevent the issuance of any such stop order andPreliminary Prospectus or of the Prospectus, if issuedor for additional information, to obtain and the lifting of such order as soon as possible. The Company will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), to any amendment of Preliminary Prospectus or supplement to the Prospectus (including the a prospectus required to be filed pursuant to Rule 424(b)or Rule 434424(b)) that differs from if the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely Representatives have not been furnished in advance with a copy thereofprior to such filing (with a reasonable opportunity to review such amendment or supplement) or if the Representatives object to such filing.
(b) If If, at any time when a prospectus relating to the Shares is required by law to be delivered under the Securities Act in connection with sales by an Underwriter or dealer, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company promptly will notify you advise the Representatives and counsel to the Underwriters and the Attorneys-in-Fact thereof and will promptly and prepare and file with the Commission Commission, at its expense, an appropriate amendment or supplement (in form and substance satisfactory to you) the Registration Statement which will correct such statement or omission and or an amendment which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documentscompliance; and, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior any Underwriter is required to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as deliver a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the 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 prospectus after the 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, the Company Company, upon request of the Representatives, will furnish prepare promptly such prospectus or prospectuses as may be necessary to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company permit compliance with the Commission or any national securities exchange.requirements of Section 10(a)(3)
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Exchange Act: (i) before termination of the offering of the Securities by the Underwriters which the Underwriters shall not previously have been advised and if Rule 430A furnished with a copy; or (ii) to which the Underwriters shall have objected; or (iii) which is used not in compliance with the Act, the Exchange Act or the filing of Rules and Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period Underwriters 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.
(ii) The Company will notify you immediately (and, if requested confirm by you, will confirm such notice in writing)
: (i) when the Registration Statement and any amendments thereto become Statement, as amended, becomes effective, (ii) 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 and when any request by the Commission for any post-effective amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, becomes effective; (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivii) of the issuance by the Commission of any stop order or of the initiation, or the threatening of any proceeding, suspending the effectiveness of the Registration Statement or any post-effective order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment thereto or supplement thereto, or the institution or proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceedings therefor, proceeding for that purpose; (viv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of any notification with respect to the suspension of the qualification of the Shares Commission 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 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) for additional information. If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national state securities exchange.commission or regulatory authority shall enter a stop order or suspend such qualification at any time, the
Appears in 1 contract
Samples: Underwriting Agreement (Frost Hanna Capital Group Inc)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent and the Company that:
(ia) If During the period in which a prospectus relating to the Stock is required to be delivered under the Act, the Company will notify the Agent promptly of the time when any subsequent amendment to the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 any subsequent supplement to 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 filed 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; it will prepare and file with the Commission, (iii) promptly upon the Agent's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent's reasonable opinion, may be necessary or advisable in connection with the distribution of the mailing or Stock by the delivery to Agent; the Commission for filing of Company will not file any amendment of or supplement to the Registration Statement or Prospectus (other than any prospectus supplement relating to the Prospectusoffering of other securities (including, without limitation, common stock not included in an Delayed Offering of Equity Securities, as defined below) registered under the Registration Statement) unless a copy thereof has been submitted to the Agent a reasonable period of time before the filing (ivwhich in the case of a prospectus supplement filed under Rule 424(b) may be the date of filing where necessary) and the Agent has not reasonably objected thereto; and the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b) The Company will advise the Agent, 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningStatement, of any proceedings therefor, (v) of the 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 Shares Stock for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding for that any such purpose. If the Commission shall propose or enter a stop order at any time, the Company ; and it will promptly use its best efforts to prevent the issuance of any such stop order and, if issued, or to obtain the lifting of its withdrawal if such a stop order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to should be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofissued.
(bc) If at any Within the time when during which a prospectus relating to the Shares Stock is required to be delivered under the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act and by 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 Stock as contemplated by the provisions hereof and the Prospectus. If during such period any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, or any document that is deemed to be incorporated by reference in the judgment of the Agent or the Company, Prospectus 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, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it shall be is necessary at any time to amend or supplement the Registration Statement or Prospectus or any document that is deemed to be incorporated by reference in the Registration Statement or Prospectus to comply with the Securities Act or the Securities Act RegulationsAct, the Company will promptly notify you promptly the Agent to suspend the offering of Stock during such period and prepare and file with the Commission an appropriate amendment Company will amend or supplement the Registration Statement or Prospectus or any document that is deemed to be incorporated by reference in the Registration Statement or Prospectus (in form and substance satisfactory at the expense of the Company) so as to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent or effect such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestcompliance.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior use its best efforts to qualify the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Stock for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate the Agent designates and to maintain continue such qualification qualifications in effect for so long as required for the distribution thereof; of the Stock, except that in no event shall the Company shall not be obligated required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction.
(e) The Company will furnish to the Agent and its counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the period in which a prospectus relating to the Stock is required to be delivered under the Act, in each case as soon as available and in such quantities as the Agent may from time to time reasonably request and, in the case when the Trading Market is a national securities exchange, the Company will also furnish copies of the Prospectus to such exchange in accordance with Rule 153 of the Rules and Regulations.
(f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (within which need not be audited) covering a 12-month period that satisfies the meaning provisions of Section 11(a) of the Securities Act) to its security holders Act 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Rules and Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(fg) Other 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.
(h) Unless this Agreement is terminated by the Agent or is terminated by the Company for "cause" (as hereinafter defined), the Company agrees not to engage in, or enter into any agreement with any other party to act as underwriter for, any offering of securities involving a program similar, as reasonably determined by the Agent, to the Agent's DOCS-SM- transaction contemplated by this Agreement (a "Delayed Offering of Equity Securities"), other than a dividend reinvestment or stock purchase plan, until the earlier date to occur (the "Non-Exclusivity Date") of (i) the sale by the Agent of an aggregate of 375,000 shares of Stock under this Agreement and (ii) the date one year from the date of this Agreement. If, during the two-year period following the Non-Exclusivity Date, this Agreement is terminated by the Company without cause or terminates pursuant to Section 7.2, the Company desires to engage another party with respect to a Delayed Offering of Equity Securities, the Company shall deliver to the Agent a written summary of the material terms and conditions of such Delayed Offering of Equity Securities. If, within 15 days of delivery of such written summary, the Agent modifies its program such that, in the reasonable determination of the Company, the Agent's program is at least as beneficial to the Company as is the other Delayed Offering of Equity Securities, then the Company shall maintain its exclusive arrangement with the Agent (subject to submissions, from time to time, of other Delayed Offering of Equity Securities and the Company's issuance and the Agent's respective rights to terminate this Agreement pursuant to Article VII hereof); if the Agent does not so modify its program, the Company shall be able to engage such other party in connection with such Delayed Offering of Common Stock, Equity Securities.
(i) pursuant to any existing employee benefit plans, (ii) upon The Company will apply the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days net proceeds from the date hereof, sale of the Stock as set forth in the Prospectus.
(j) The Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree sell any common shares of beneficial interest (other than the Stock) or securities convertible into or exchangeable for, or any rights to sellpurchase or acquire, grant any option common shares of beneficial interest during the period from the date of this Agreement through the final Closing Date for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" of Stock hereunder without (within a) giving the meaning of Rule 16a-1(h) under Agent at least three business days' prior written notice specifying the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any nature of the economic consequences proposed sale and the date of ownership of the Common Stock such proposed sale and (whether any b) suspending activity under this program for 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, time as may be determined by the Company will furnish to you copies in its sole discretion; provided, however, that no such notice and suspension shall be required in connection with the Company's issuance or sale of (i) all reports common shares of beneficial interest pursuant to its stockholders; any employee or director stock option or benefits plan, stock ownership plan, dividend reinvestment or stock purchase plan now in effect as such plans may be amended from time to time, and (ii) all reportscommon shares of beneficial interest issuable upon conversion of securities or the exercise of warrants, financial statements options or other rights in effect or outstanding on the date hereof.
(k) The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Agent 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 proxy other document provided to the Agent pursuant to Article IV herein.
(l) Each time that the Registration Statement or information statements filed by the Prospectus shall be amended or supplemented, the Company shall furnish or cause to be furnished to the Agent forthwith a certificate dated the date of filing with the Commission of such supplement or the date of effectiveness of such amendment, as the case may be, in form satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 4.1(f) hereof which were last furnished to the Agent are true and correct at the time of such amendment or supplement 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 certificate, a certificate of the same tenor as the certificate referred to in said Section 4.1(f), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(m) Each time that the Registration Statement or the Prospectus is amended or supplemented, the Company shall furnish or cause to be furnished forthwith to the Agent and to counsel to the Agent (1) a written opinion of Ungaretti & Xxxxxx, counsel to the Company ("Company Counsel"), or other counsel satisfactory to the Agent, dated the date of filing with the Commission of such supplement or the date of effectiveness of such amendment, as the case may be, in form and substance satisfactory to the Agent, of the same tenor as the opinion referred to in Section 4.1(d) hereof, 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.
(n) Each time that the Registration Statement or the Prospectus shall be amended or supplemented to include additional amended financial information or there is filed with the Commission any national securities exchangedocument incorporated by reference into the Prospectus which contains additional amended financial information, the Company shall cause Coopers & Xxxxxxx, or other independent accountants satisfactory to the Agent, forthwith to furnish the Agent 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 satisfactory to the Agent, of the same tenor as the letter referred to in Section 4.1(e) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) The Company shall use its best efforts to list, subject to notice of issuance, the Stock on the applicable Trading Market.
Appears in 1 contract
Samples: Sales Agency Agreement (Centerpoint Properties Trust)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatUnderwriter as follows:
(ia) If Immediately following the Registration Statement has not yet been declared effective on the date execution of this Agreement, the Company will use its best efforts prepare a Prospectus Supplement with respect to cause the Registration Statement Shares that complies with the Securities Act and the Securities Act Regulations and which sets forth the name of the Underwriter and the number of Shares that the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company, any amendments thereto to become effective as promptly as possibleinitial public offering price, any selling concession and re-allowance, and if Rule 430A is used or such other information as the filing Underwriter and the Company deem appropriate in connection with the offering of the Shares. The Company will promptly transmit copies of the Prospectus Supplement and the Prospectus to the Commission for filing pursuant to Rule 424 under the Securities Act and will furnish to the Underwriter as many copies of the Prospectus Supplement and the Prospectus as the Underwriter shall reasona-bly request.
(b) Dxxxng the period when a prospectus relating to the Shares is otherwise required to be delivered under Rule 424(b) or Rule 434the Securities Act, the Company will file promptly advise 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 Underwriter 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the effectiveness of any amendment to the Registration Statement and any amendments thereto become effectiveStatement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the mailing information relating thereto or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectusdocument incorporated by reference therein, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings thereforproceeding for that purpose, and (v) of the 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 Shares for sale in any jurisdiction or the initiation institution or threatening of any proceeding pro- ceeding for that such purpose. If the Commission shall propose or enter a stop order at any time, the The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(bc) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act Act, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, 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 promptly will notify you promptly and prepare and file with the Commission Commission, subject to paragraph (d) of this Section 3, an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and or an amendment or supplement which will use effect such compliance. Neither the Underwriter's consent to, nor the Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) At any time when a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give the Under- writer notice of its best efforts intention to have file any amendment to the Registration Statement declared effective as soon as possibleor any amendment or supplement to the Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Underwriter shall reasonably object.
(ce) The Company will promptly deliver has furnished or will, if requested, furnish to you two signed the Underwriter and its counsel, without charge, conformed copies of the Registration Statement, including exhibits Statement as originally filed and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the Company will promptly deliver to each documents incorporated therein by reference) and, so long as delivery of a prospectus by an underwriter or dealer may be required by the Agent such number of Securities Act, as many copies of any preliminary prospectus, the Prospectus, the Registration Statement, Prospectus and all any amendments of thereof and supplements to such documents, if any, thereto as you the Underwriter may reasonably request.
(df) The Company will endeavor in good faithshall use its reasonable efforts, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriter, to qualify, if necessary, qualify the Shares for offering and sale under the applicable securities laws relating to the offering or sale of the Shares of such jurisdictions states in the United States as you the Underwriter may reasonably designate and to will maintain such qualification in effect for so as long as required for in connection with the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to execute a general consent subject itself to service taxation in respect of processdoing business in any jurisdiction in which it is not otherwise so subject.
(eg) The Company will make generally available (within use the meaning of Section 11(a) net proceeds received by it from the sale of the Securities ActShares in the manner to be indicated in the Prospectus Supplement under "Use of Proceeds."
(h) The Company will use its reasonable efforts to its security holders and cause the Shares to you as soon as practicable, but not later than 45 days after be listed on the end of its fiscal quarter in which the first anniversary date New York Stock Exchange or listed on a "national securities exchange" registered under Section 6 of the effective date of the Registration Statement occurs, an earnings statement Exchange Act.
(in form complying with the provisions of Rule 158 of the Securities Act Regulationsi) covering During a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
thirty (f30) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofof the Prospectus Supplement, the Company will not, and will not permit without the prior written consent of the Underwriter (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any of its affiliatesoption or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of, directly or indirectly, to issueany shares of Common Stock or securities converti-ble into or exchangeable or exercisable for or repayable with Common Stock, sell, offer or agree to sell, grant file any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) regis- tration statement under the Exchange Act), Securities Act with respect to any of the foregoing (other than a shelf registration statement under Rule 415) or (ii) enter into any swap, derivative transaction swap or other arrangement agreement or any transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences conse-quence of ownership of the Common Stock (Stock, or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, whether any such swap or transaction de-scribed in clause (i) or (ii) above is to be settled by delivery of Common StockStock or such other se- curities, other securities, in cash or other considerationotherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) the Common Stock to be delivered upon conversion of the Company's 4.25% Senior Convertible Notes due 2023 or otherwise dispose ofthe Company's 4.50% Senior Convertible Notes due 2024, any (C) the resale registration statement filed by the Company and American pursuant to the registration rights agreement relating to resales of the Company's 4.25% Senior Convertible Notes due 2023, (D) Common Stock (or any securities convertible into, exercisable for or exchangeable for options to purchase Common Stock) to be issued pursuant to the Corporation's 1988 Long Term Incentive Plan, as amended, the 1998 Long Term Incentive Plan, as amended, the 1994 Directors Stock Incentive Plan, as amended, the 1997 Pilot Stock Option Plan, the 2003 Employee Stock Incentive Plan or any interest therein other employee compensation benefit plans or announce any intention pursuant to do any currently outstanding options, warrants or rights existing on the date hereof and referred to in the Prospectus Supplement, and (E) up to 100,000 shares of the foregoing without Common Stock to be issued to vendors, lessors, lenders and suppliers pursuant to concessionary agree-ments reached with them in the prior written consent Spring of the Agent2003.
(gj) During The Company shall cooperate with the Underwriter and use its reasonable efforts to permit the Shares to be eligible for clearance and settlement through the facilities of The Depository Trust Company ("DTC").
(k) The Company, during the period when a period of three years from Prospectus relating to the effective date of the Registration StatementShares is required to be delivered, the Company will furnish file all documents required to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements be filed by the Company with the Commission or any national securities exchangepursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Amr Corp)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters:
(iA) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 To prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will in a form approved by you and to file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Act not later than the Commission's close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this Agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested applicable, such earlier time as may be required by you, will confirm such notice in writing)
(iRule 430A(a)(3) when under the Registration Statement and Act; to make no further amendment or any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Prospectus or for any additional informationamended Prospectus has been filed and to furnish you copies thereof; to advise you, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectuspromptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any Preliminary Prospectus or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, the Company will to use promptly its best efforts to prevent obtain its withdrawal;
(B) Promptly from time to time to take such action as you may reasonably request to qualify the issuance Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(C) To furnish the Underwriters with copies of the Prospectus in such stop order quantities as you may from time to time reasonably request, and, if issued, to obtain the lifting delivery of such order as soon as possible. The Company will not file a prospectus is required at any amendment time prior to the Registration Statement or any amendment expiration of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at nine months after the time of the effectiveness issuance of the Registration Statement before Prospectus in connection with the offering or after the effective date sale of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If Shares and if at such time any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event events shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, or or, if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement in order to comply with the Securities Act or the Securities Act RegulationsAct, the Company will to notify you promptly and upon your request to 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver furnish without charge to each of the Agent such number of Underwriter and to any dealer in securities as many copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may from time to time reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at request of an amended Prospectus or prior a supplement to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.Prospectus which
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:: ------------------------
(ia) If It will promptly deliver to each of you a signed copy of the Registration Statement has as originally filed or, to the extent a signed copy is not yet been declared effective on available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable after the date of this Agreementhereof, the Company will 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 many copies of the Prospectus is otherwise required under Rule 424(bas of such date as you may reasonably request.
(c) or Rule 434, the Company It will file cause the Prospectus (properly completed if Rule 430A has been used) to be filed with the Commission pursuant to Rule 424(b) or Rule 434 within the prescribed time period 424 as soon as practicable and will provide evidence satisfactory to advise 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) issuance of any request by stop order under the Commission for any amendment of or supplement Securities Act with respect to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, institution of any proceedings therefor, (v) therefor of which the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeOfferors shall have received notice. If the Commission shall propose or enter a stop order at any time, the 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, during such period of time (not exceeding nine months) after the Prospectus has been filed with the Commission pursuant to obtain Rule 424 as in the lifting opinion of such Counsel for the Underwriters a prospectus covering the Preferred Trust Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, any event relating to or affecting the Company or the Trust or of which the Company shall be advised in writing by you shall occur that in the Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order as soon as possible. The to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will not file any amendment to the Registration Statement or any amendment of will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to 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 (including the prospectus required to be filed ii) making an appropriate filing pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time Section 13 of the effectiveness of the Registration Statement before Exchange Act, which will supplement or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which amend the Prospectus so that, as then amended supplemented or supplemented wouldamended, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madewhen 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 any such amendment or if it shall be necessary at supplement. In case any time Underwriter is required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and prepare and file is filed with the Commission an appropriate amendment pursuant to Rule 424, the Company, upon such Underwriter's request, will furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus 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 supplements to the Registration Statement declared effective as soon as possible.
(cProspectus complying with Section 10(a) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processSecurities Act.
(e) The Company It will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the security holders of the Trust, 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve 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 the Registration StatementStatement as defined in Rule 158 under the Securities Act.
(f) Other than It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Company's issuance Preferred Trust Securities for offer and sale under the blue-sky laws of Common Stocksuch jurisdictions as you may designate, provided that the neither of the Offerors shall 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 Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) pursuant to any existing employee benefit plansthe preparation and filing by it of the Registration Statement, (ii) upon the exercise, conversion or exchange issuance and delivery of any currently outstanding stock options or warrantsthe Preferred Trust Securities as provided in Section 5 hereof, (iii) in exchange for shares the qualification of MGV Energythe Preferred Trust Securities under blue-sky laws (including counsel fees not to exceed $7,500), Inc. currently held by minority shareholders thereof, or and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in a transaction described Section 6(d) hereof, of the Prospectus. The Company shall not, however, be required to pay any amount for any expenses of yours or any of the Underwriters, except that, if this Agreement shall be terminated in Rule 145(a)(2) accordance with the provisions of Section 7, 8 or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date 10 hereof, the Company will notreimburse 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 not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option reimburse the Underwriters for the sale their reasonable out-of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another-pocket expenses, in whole or an aggregate amount not exceeding $5,000, incurred in part, contemplation of the performance of this Agreement. The Company shall not in any event be liable to any of the economic consequences several Underwriters for damages on account of ownership loss of anticipated profits.
(h) During the Common Stock (whether any such transaction is period from the date of this Agreement to be settled by delivery of Common Stockthe Closing Date, other securitiesneither the Company nor the Trust will, 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, in the effective date market in which the Preferred Trust Securities are being offered and sold, any securities of the Registration Statement, the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangeof its subsidiaries or of the Trust which are of the same class as the Preferred Trust Securities.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent you that:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best reasonable efforts to cause the Registration Statement Blue Sky Applications in the Designated States and any subsequent amendments thereto to become effective (which term as used in this Agreement shall include taking all reasonable steps necessary to obtain an exemption from registration of the Securities in a jurisdiction) 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.
(ii) The Company ; it will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) promptly of any request by the Securities Exchange Commission (“SEC”) or the corporate or securities departments, divisions or agencies (“Securities Departments”) of any of the Designated States for any the amendment or supplementing of the Blue Sky Applications; Company counsel will, at the Company’s expense, promptly file such amendments or supplement supplements to the Registration Statement Blue Sky Applications, as may be necessary to correct any statements or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 Company will use its best efforts to prevent the issuance of any such stop order and, omissions if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, Blue Sky Applications 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, in the light of the circumstances under which they were made, therein 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.
(b) Promptly upon becoming aware thereof, the Company will notify advise you promptly and, if requested, confirm such advice in writing (i) of the effectiveness of the Blue Sky Applications; (ii) of the issuance of any orders affecting the effectiveness of the Blue Sky Applications, or of the initiation or threatening of any proceeding for that purpose; and prepare (iii) of any orders or other communications of any public authority addressed to the Company suspending or threatening to suspend qualification of the Securities for sale or any exemption therefrom 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 Company will use its best all reasonable efforts to have prevent the issuance of any amendment such order or to the Registration Statement declared effective as soon as possibleobtain lifting of such an order if such an order should be issued.
(c) The Company will promptly deliver agrees to pay all reasonable expenses in connection with (i) the preparation, printing, duplicating and filing of the Blue Sky Applications including the costs of all copies thereof and of any amendments or supplements thereto supplied to you two signed copies in quantities as hereinabove stated, (ii) the preparation and delivery of the Registration Statement, including exhibits and all amendments theretoinstruments evidencing the Securities, and (iii) the Company will promptly deliver to each legal and other expenses of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestCompany.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior agrees that until the first to the time of effectiveness occur of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering termination of this Agreement or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect Offering Period it will not sell or offer for so long as required for the distribution thereof; sale any Securities, 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 processwith your written consent.
(e) The Company will make generally available file Form D (within as defined in Regulation D) and all required amendments thereto in a timely manner with the meaning of Section 11(a) SEC and the Securities Departments of the Securities Act) Designated States and deliver copies thereof to its security holders and to you as soon as practicableyou, 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 earnings statement (in form complying together 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(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 forms and other documents or materials filed either before or after any Closing Date to its stockholders; and (ii) comply with State securities laws, all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangein such reasonable quantities as you may from time to time request.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thateach Underwriter as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this AgreementCompliance with Securities Regulations and Commission Requests. The Company, the Company subject to Section 3(b), will 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 comply with the requirements of Rule 434.
(ii) The Company 430B, and will notify you immediately (andthe Representatives promptly, if requested by you, will and confirm such the notice in writing)
, (i) when any post-effective amendment to the Registration Statement and or the ADS Registration Statement shall become effective or any amendments thereto become effectiveamendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus ADS Registration Statement or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement Prospectus, including any document incorporated by reference therein or the Prospectusfor additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or any post-effective amendment thereto or of any order preventing or suspending the initiationuse of any preliminary prospectus or the Prospectus, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement or the ADS Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under 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 pay any applicable fees in accordance with the 1933 Act in a timely manner, and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for that purpose. If filing under Rule 424(b) was received for filing by the Commission shall propose or enter a stop order at any timeand, in the event that it was not, it will promptly file such prospectus. The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order order, prevention or suspension and, if any such order is issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file thereof at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofearliest possible moment.
(b) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the ADS Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Shares Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered under in connection with sales of the Securities Act Securities, any event shall have occurred occur or condition shall exist as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent Underwriters or for the Company, to (i) amend the Registration Statement or the ADS Registration Statement, as applicable, in order that the Registration Statement or the ADS Registration Statement, as the case may be, will not 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 thereintherein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made, not misleading, existing at the time it is delivered to a purchaser or if it shall be necessary at any time to (iii) amend the Registration Statement or the ADS Registration Statement or amend or supplement the Prospectus General Disclosure Package or Registration Statement the Prospectus, as the case may be, in order to comply with the Securities requirements of the 1933 Act or the Securities 1933 Act Regulations, the Company will notify you promptly and (A) give the Representative notice of such event, (B) prepare and file with the Commission an appropriate any amendment or supplement (in form and substance satisfactory as may be necessary to you) which will correct such statement or omission and will use its best efforts or to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of make the Registration Statement, including exhibits the ADS Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and all amendments thereto, and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters shall reasonably object. The Company will promptly deliver furnish to each of the Agent Underwriters such number of copies of any preliminary prospectus, such amendment or supplement as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(d) . The Company will endeavor in good faith, in cooperation with you, at has given the Representative notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereofApplicable Time; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will notgive the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not permit file or use any of its affiliates, directly such document to which the Representatives or indirectly, to issue, sell, offer or agree to sell, grant any option counsel for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the AgentUnderwriters shall reasonably object.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Company. The Company covenants and agrees Mercxx Xxxual covenant with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 Mercxx Xxxual will prepare and file a term sheet that complies such amendments or supplements to the Registration Statement, the Prospectus, the Conversion Application and the Proxy Statement as may hereafter be required by the Securities Act Regulations or the Conversion Act or as may hereafter be requested by the Agent. Following completion of the Offerings, the Company and Mercxx Xxxual will promptly prepare and file with the requirements Commission a post-effective amendment to the Registration Statement relating to the results of Rule 434.
the updated valuation of Mercxx Xxxual prepared by Alex Xxxxxxxxxx & Xo. The Company and Mercxx Xxxual will notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement, the filing of any supplement to the Prospectus and the filing of any amendment to the Conversion Application, (ii) The Company will notify you immediately (and, if requested of the receipt of any comments from the Department or the Commission with respect to the transactions contemplated by you, will confirm such notice in writing)
(i) when this Agreement or the Registration Statement and any amendments thereto become effectivePlan, (iiiii) of any request by the Commission or the Department for any amendment of or supplement to the Registration Statement or the Conversion Application or any amendment or supplement to the Prospectus or for any additional information, (iiiiv) of the mailing issuance by the Department of any order suspending the Offerings or the delivery to use of the Commission for filing Prospectus or the initiation of any amendment of or supplement to the Registration Statement or the Prospectusproceedings for that purpose, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification notice with respect to the suspension of the any qualification of the Shares Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that purposejurisdiction. If the Commission shall propose or enter a stop order at any time, the The Company and Mercxx Xxxual 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 the lifting of such order as soon as possible. thereof at the earliest possible 14 moment.
(b) The Company and Mercxx Xxxual will not give the Agent notice of its intention to file or prepare any amendment to the Conversion Application or Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the Commission at the time of the effectiveness of the Registration Statement before becomes effective, whether or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a not such revised prospectus relating to the Shares is required to be delivered under filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Agent 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 the Agent or counsel for the Agent may object.
(c) The Company and Mercxx Xxxual will deliver to the Agent as many signed copies and as many conformed copies of the Conversion Application and the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Agent may reasonably request, and from time to time such number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered, the Company and Mercxx Xxxual will comply, at their own expense, with all requirements imposed upon them by the Department, by the Conversion Act, as from time to time in force, and by the Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(e) If any event or circumstance shall have occurred occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company and Mercxx Xxxual will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as then so amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, 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 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 Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company and Mercxx Xxxual will promptly deliver furnish to each of the Agent such a reasonable number of copies of any preliminary prospectussuch amendment or supplement. For the purpose of this subsection, the Prospectus, Company and Mercxx Xxxual will each furnish such information with respect to itself as the Registration Statement, and all amendments of and supplements Agent may from time to such documents, if any, as you may time reasonably request.
(df) The Company and Mercxx Xxxual will endeavor in good faithtake all necessary action, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementAgent, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states of the Shares of such United States and other jurisdictions as you may designate be required and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall Agent and the Company have agreed; provided, however, that the Company and Mercxx Xxxual shall not be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company and Mercxx Xxxual will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such 15 qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eg) The Company authorizes Sandler O'Nexxx xxx any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its shareholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and consolidated statements of income, shareholders' equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first such fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the Mercer Companies for such quarter in reasonable detail. In addition, annual and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to shareholders of the Company.
(fj) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to shareholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from time to time, such other publicly available information concerning the Company as the Agent may reasonably request.
(k) The Company and Mercxx Xxxual will conduct the Conversion in all material respects in accordance with the Plan, the Conversion Act and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or Mercxx Xxxual by the Department.
(l) The Company and Mercxx Xxxual will use the net proceeds received from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(m) The Company will file with the Commission such reports on Form SR as may be required pursuant to Rule 463 of the Securities Act Regulations, if such report or 16 substantially similar report is required by the SEC.
(n) The Company will file with the Nasdaq Stock Market all documents and notices required by the rules of the (i) Nasdaq Stock Market for companies (i) that have issued securities that are traded in the over-the-counter market and (ii) quotations for which are reported by the Nasdaq Stock Market.
(o) The Company and Mercxx Xxxual will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the National Association of Securities Dealers, Inc.'s "Interpretation Relating to Free-Riding and Withholding."
(p) Other than the Company's issuance of Common Stock, (i) pursuant to in connection with any existing employee benefit plans, (ii) upon the exercise, conversion plan or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction arrangement described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofProspectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities for a period of 180 days following the Closing Time.
(gq) During a the period of three years from beginning on the effective date hereof and ending on the third anniversary of the Registration StatementClosing Time, or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7 which is pending upon such third anniversary, neither the Company nor Mercxx Xxxual shall, without the prior written consent of the Agent, which consent shall not be unreasonably withheld, take or permit to be taken any action that could result in Mercxx Xxxmon Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(r) The Company and Mercxx Xxxual will comply with any conditions imposed by or agreed to with the Department in connection with their approval of the Plan.
(s) The Company shall not deliver the Securities until the Company and Mercxx Xxxual have satisfied each condition set forth in Section 5 hereof, unless such condition is waived by the Agent.
(t) The Company or Mercxx Xxxual will furnish to you copies Sandler O'Nexxx xx early as practicable prior to the delivery of the letters to be furnished by KPMG Peat Marwick LLP pursuant to subsections (ie) all reports to its stockholders; and (iif) all reportsof Section 5 hereof, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of Mercer Mutual and proxy or information statements filed the Subsidiaries which have been read by the Company with the Commission or any national securities exchangeKPMG Peat Marwick LLP, as stated in their letters to be furnished pursuant to subsections (e) and (f) of Section 5 hereof.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 the Agent 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.
(ii) The Company will notify you the Agent immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities 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 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you the Agent shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares Securities is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 the Agent promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Company and the Agent) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you the Agent two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectusPreliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Agent may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with youthe Agent, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares Securities for offering and sale under the securities laws relating to the offering or sale of the Shares Securities of such jurisdictions as you the Agent may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Agent 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 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you the Agent copies of (i) all reports to its stockholders; stockholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i1) If To prepare any registration statement or prospectus, if required, in connection with the Remarketing, in a form approved by the Remarketing Agent and to file any such prospectus pursuant to the Securities Act within the period required by the Rules and Regulations;
(2) to advise the Remarketing Agent, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has not yet been declared filed or becomes effective on or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Agreement, the Company will use its best efforts to cause Prospectus and for so long as the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A delivery of a prospectus is used required in connection with the offering or the filing sale 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.Remarketed Notes;
(ii4) The Company will notify you immediately (andto advise the Remarketing Agent, if requested by youpromptly after it receives notice thereof, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 any of the Shares Remarketed Notes for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement or the Prospectus or for additional information, and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Prospectus or suspending any such qualification, the Company will to use promptly 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereofits withdrawal.
(b) If To furnish promptly to the Remarketing Agent and to counsel to the Remarketing Agent a signed copy (or true conformed copy) of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York City such number of the following documents as the Remarketing Agent shall request (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the Indenture); (ii) the Prospectus and any amended or supplemented Prospectus; (ii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and (iv) any Remarketing Materials; and, if the delivery of a prospectus is required at any time when a prospectus relating to in connection with the Shares is required to be delivered under the Securities Act Remarketing and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Securities Act RegulationsExchange Act, to notify the Company will notify you promptly Remarketing Agent and, upon its request, to file such document and to prepare and file with furnish without charge to the Commission Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time request of an appropriate amendment amended or supplement (in form and substance satisfactory to you) supplemented Prospectus which will correct such statement or omission or effect such compliance; provided that the expense of preparing and will use its best efforts filing any such amendment or supplement (i) which is necessary in connection with such a delivery of a prospectus more than nine months after the Remarketing Date or (ii) which relates solely to have the activities of the Remarketing Agent shall be borne by the Remarketing Agent.
(d) To file promptly with the Commission any amendment to the Registration Statement declared effective as soon as possibleor the Prospectus or any supplement to the Prospectus that is required by the Securities Act or requested by the Commission.
(ce) The Company will promptly deliver Prior to you two signed copies filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Registration StatementRules and Regulations, including exhibits to furnish a copy thereof to the Remarketing Agent and all amendments thereto, counsel to the Remarketing Agent; and not to file any such amendment or supplement which shall be reasonably objected to in writing by the Company will Remarketing Agent promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestafter reasonable notice.
(df) The Company will endeavor As soon as practicable, but in good faithany event not later than 15 months, in cooperation with you, at or prior to after the time of effectiveness Effective Date of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make "generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but holders" an "earnings statement" (which need 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationsbe audited) covering a period of at least twelve consecutive months beginning after the effective date Effective Date which will satisfy the provisions of the Registration Statement.
(fSection 11(a) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under and the Securities ActRules and Regulations (including, during at the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership Company, Rule 158). The terms "generally available to its security holders" and "earnings statement" shall have the meanings set forth in Rule 158 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 foregoing without the prior written consent of the AgentRules and Regulations.
(g) During To take such action as the Remarketing Agent may reasonably request in order to qualify the Remarketed Notes for offer and sale under the securities or "blue sky" laws of such jurisdictions as the Remarketing Agent may reasonably request; provided that the Company shall not be required to qualify as a period foreign corporation in any State, to consent to service of three years from process in any State other than with respect to claims arising out of the effective date offering or sale of the Remarketed Notes, or to meet any other requirement in connection with this paragraph (g) deemed by the Company to be unduly burdensome.
(h) To pay (1) the costs incident to the preparation and printing of the Registration Statement, Prospectus and any Remarketing Materials and any amendments or supplements thereto; (2) the Company will furnish costs of distributing the Registration Statement, Prospectus and any Remarketing Materials and any amendments or supplements thereto; (3) the fees and expenses of qualifying the Remarketed Notes under the securities laws of the several jurisdictions as provided in Section 5(g) and of preparing, printing and distributing a Blue Sky Memorandum (including related fees and expenses of counsel to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.Remarketing Agent);
Appears in 1 contract
Samples: Remarketing Agreement (Pp&l Capital Funding Trust I)
Covenants of the Company. The From and after the execution and ------------------------ delivery of this Agreement to and including the Closing Date, the Company covenants and agrees with the ------------------------ Agent thatshall:
(ia) If Comply with all applicable Laws, including all such Laws relating to the Registration Statement has PCS License and the Purchased Assets or their use except to the extent that such failure to comply would not yet been declared effective have a Company Material Adverse Effect or a material adverse effect on the date of this Agreement, the Company will 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares 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 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.Transactions;
(b) If at any time when a prospectus relating to Comply with the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment terms of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 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 Registration Statement declared effective as soon as possible.Stockholders' Agreement;
(c) The Company will Give written notice to AT&T PCS promptly deliver upon the commencement of, or upon obtaining knowledge of any facts that would give rise to you two signed copies of a threat of, any claim, action or proceeding commenced against or relating to (other than proceedings affecting the Registration StatementPCS or wireless communications services industry generally) it, including exhibits and all amendments theretoits properties or assets, and which would reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.Transactions;
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness Promptly after obtaining knowledge of the Registration Statementoccurrence of, or the impending or threatened occurrence of, any event which would cause or constitute a material breach of any of its warranties, representations, covenants or agreements contained in this Agreement or which would reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on the Transactions, give notice in writing of such event or occurrence or impending or threatened event or occurrence (provided, that such disclosure shall not be deemed to cure any violation or breach of any such representation, warranty, covenant, agreement or provision), to qualify, if necessary, the Shares for offering AT&T PCS and sale under the securities laws relating use commercially reasonable efforts to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation prevent or to execute a general consent to service of process.promptly remedy such breach;
(e) The Cause AT&T PCS to be advised promptly in writing of (i) any event, condition or state of facts known to it, which has had or would reasonably be expected to have a Company will make generally available Material Adverse Effect or a material adverse effect on the Transactions (within other than proceedings affecting the meaning of Section 11(aPCS or wireless communications services industry generally) and (ii) any claim, action or proceeding which seeks to enjoin the consummation of the Securities 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 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.Transactions; and
(f) Other than Be responsible for obtaining, and shall use its commercially reasonable best efforts (which shall not include an obligation on the Company's issuance part of Common Stockthe Company to expend any material cash amount) to obtain, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange Consents of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under third parties to the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any assignment 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 foregoing without the prior written consent of the AgentAssigned Agreements set forth on Schedule 5.2.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:
(ia) If It will promptly deliver to you a signed copy of the Registration Statement has as originally filed or, to the extent a signed copy is not yet been declared effective on available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable after the date of this Agreementhereof, the Company will 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 many copies of the Prospectus is otherwise required under Rule 424(bas of such date as you may reasonably request.
(c) or Rule 434, the Company It will file cause the Prospectus (properly completed if Rule 430A has been used) to be filed with the Commission pursuant to Rule 424(b) or Rule 434 within the prescribed time period 424 as soon as practicable and will provide evidence satisfactory to advise 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) issuance of any request by stop order under the Commission for any amendment of or supplement Securities Act with respect to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, institution of any proceedings therefor, (v) therefor of the receipt of any comments from the Commission and (vi) of the receipt by which the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeshall have received notice. If the Commission shall propose or enter a stop order at any time, the 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, during such period of time (not exceeding nine months) after the Prospectus has been filed with the Commission pursuant to obtain Rule 424 as in the lifting opinion of such Counsel for the Underwriters a prospectus covering the Securities is required by law to be delivered in connection with sales by an Underwriter or a dealer, any event relating to or affecting the Company or of which the Company shall be advised in writing by you shall occur that in the Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order as soon as possible. The to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will not file any amendment to the Registration Statement or any amendment of will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to 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 (including the prospectus required to be filed ii) making an appropriate filing pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time Section 13 of the effectiveness of the Registration Statement before Exchange Act, which will supplement or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which amend the Prospectus so that, as then amended supplemented or supplemented wouldamended, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madewhen 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 any such amendment or if it shall be necessary at supplement. In case any time Underwriter is required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and prepare and file is filed with the Commission an appropriate amendment or supplement (in form and substance satisfactory pursuant to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectusRule 424, the ProspectusCompany, the Registration Statementupon your request, and all amendments of and supplements will furnish to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at your expense, a reasonable quantity of a supplemental prospectus or prior supplements to the time of effectiveness Prospectus complying with Section 10(a) of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processSecurities Act.
(e) The Company It will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you holders, 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve 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 StatementStatement as defined in Rule 158 under the Securities Act.
(f) Other than It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Company's issuance Securities for offer and sale under the blue-sky laws of Common Stocksuch jurisdictions as you may 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.
(g) It will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) pursuant the preparation and any filing by it of the Prospectus or any amendments to any existing employee benefit plansthe Registration Statement, (ii) upon the exercise, conversion or exchange issuance and delivery of any currently outstanding stock options or warrantsthe Securities as provided in Section 4 hereof, (iii) in exchange for shares the qualification of MGV Energy, Inc. currently held by minority shareholders thereof, or the 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 the Prospectus and, except as provided in a transaction described Section 5(d) hereof, of any amendments or supplements thereto. The Company shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if this Agreement shall be terminated in Rule 145(a)(2) accordance with the provisions of Section 6, 7 or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date 9 hereof, the Company will notreimburse the Underwriters 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 permit exceeding $5,000, incurred in contemplation of the performance of this Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of its affiliatesloss of anticipated profits.
(h) During the period beginning on the date hereof and continuing to and including the Closing Date, directly or indirectly, to issueit will not offer, sell, offer contract to sell or agree otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to sell, grant any option for purchase or otherwise acquire debt securities of the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" Company substantially similar to the Securities (within other than (i) the meaning Securities and (ii) commercial paper issued in the ordinary course of Rule 16a-1(h) under the Exchange Actbusiness), 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 foregoing without the prior written consent of the AgentRepresentatives.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriter and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Securities Act not later than the SEC's close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested applicable, such earlier time as may be required by youRule 430A(a)(3) under the Securities Act, will confirm such notice in writing)
and shall promptly advise the Underwriter (i) when any amendment to the Registration Statement and any amendments thereto shall have become effective, (ii) of any request by the Commission SEC for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing prevention or suspension of the use of any preliminary prospectus or the delivery to the Commission for filing of any amendment of Prospectus or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings thereforproceeding for that purpose, (v) of the receipt of any comments from the Commission and (viiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not file or prepare any amendment of the Commission shall propose Registration Statement or enter a stop order at any time, supplement to the Prospectus unless the Company will has furnished the Underwriter a copy for its review within a reasonable amount of time prior to filing or use and shall not file or use any such proposed amendment or supplement to which the Underwriter reasonably objects. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(b) If If, at any time when a prospectus Prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, in the light of the circumstances under which they were made, 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission SEC, subject to the second sentence of subsection (a) of this section 5, an appropriate amendment or supplement (in form and substance satisfactory to you) which will that shall correct such statement or omission and will use its best efforts to have any or an amendment to the Registration Statement declared effective as soon as possiblethat shall effect such compliance.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriter as soon as practicable, but not later than 45 days after the end of its the 12-month period beginning at the end of the fiscal quarter in of the Company during which the first anniversary date of the "effective date of the Registration Statement occursregistration statement" (as defined in Rule 158 of the Rules) occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (in form complying with which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act. The Company may satisfy this requirement by complying with Rule 158 of the Rules.
(d) The Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and all amendments thereof and, so long as delivery of a Prospectus by an Underwriter or dealer may be required by the Securities Act Regulationsor the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request.
(e) covering a period The Company shall use its best efforts to qualify the number of at least twelve consecutive months beginning Shares reasonably requested by the Underwriter for sale under the state securities laws of such states as may be mutually agreed upon between the Underwriter and the Company and to continue such qualifications in effect so long as required for the purpose of the offering. The qualifications may be undertaken by the Company's counsel or by the Underwriter's counsel, as agreed to by both parties. The Company will pay all expenses related to such qualifications and the related memorandum regardless of which counsel undertakes the qualification. Copies of all applications for the registration of securities and related documents (except for the Registration Statement and Prospectus) filed with the various states shall be supplied by counsel seeking the qualification to counsel for the other party, and copies of all comments and orders received from the various states shall be supplied to counsel for the other party as promptly as possible. Immediately after the effective date Effective Date of the Registration Statement, counsel seeking the qualifications shall advise the Underwriter in writing of all states where the offering has been registered for sale, canceled, withdrawn or denied, the state of such event(s), and the number of Shares registered.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in For a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from one year after the date hereofof this agreement, the Company will notshall supply to the Underwriter, copies of such financial statements and will not permit other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its affiliatescapital stock and to furnish to the Underwriter a copy of each annual or other report it shall be required to file with the SEC.
(g) Except as disclosed in the Registration Statement, without the prior written consent of the Underwriter, for a period of 180 days after the date of this agreement, the Company shall not issue, sell or register with the SEC (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into or exercisable or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to issuethe Registration Statement and the issuance of shares pursuant to the Company's existing stock option plan. In the event that, during this period, (i) any shares are issued pursuant to the Company's existing stock options or option plan or (ii) any registration is effected on Form S-8 or on any successor form, the Company shall obtain the written agreement of each grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this agreement, such person will not, without the prior written consent of Underwriter, offer for sale, sell, offer or agree to selldistribute, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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, directly or indirectly, or exercise any Common Stock registration rights with respect to, any shares of common stock (or any securities convertible into, exercisable for for, or exchangeable for Common Stockany shares of common stock) or any interest therein or announce any intention to do any of the foregoing without the prior written consent of the Agentowned by such person.
(gh) During a period Prior to the date that is 60 days after the time of three years from the effective date of the Registration Statementclosing, the Company will furnish not issue, directly or indirectly, without the Underwriter's prior written consent, which shall not be unreasonably withheld, any press release or other communication or hold any press conference with respect to you copies of the Company or its activities or this offering.
(i) The Company will comply with all of the provisions of any undertakings contained in the Prospectus or the Registration Statement.
(j) The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth in the Prospectus.
(k) Except as stated in this agreement and in the Prospectus, the Company will not take, directly or indirectly (except for any action taken by the Underwriter), any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the common stock to facilitate the sale or resale of the Shares.
(l) The Company will not make any payments or distributions to its stockholders for the purpose of funding, directly or indirectly, any tax liabilities of its stockholders.
(m) The Company shall take all such action required to be taken by it to cause the Shares to be approved for quotation on the OTC Bulletin Board at the earliest practicable date following the closing.
(n) The Company agrees to pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus, and the printing, filing and distribution of this agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriter; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in subsection 5(e), including the reasonable fees and disbursements of counsel for the Underwriter in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriter or by dealers to whom Shares may be sold; (v) the filing fees of the National Association of Securities Dealers, Inc. in connection with its review of the terms of the public offering; (vi) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of all reports to its stockholdersand information required by subsection 5(f); (vii) inclusion of the Shares for quotation on the OTC Bulletin Board; and (iiviii) all reportstransfer taxes, financial statements if any, with respect to the sale and proxy or information statements filed delivery of the Shares by the Company with to the Commission Underwriter. Subject to the provisions of section 8, the Underwriter agrees to pay, whether or not the transactions contemplated hereby are consummated or this agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriter under this agreement not payable by the Company pursuant to the preceding sentence, including the costs and expenses of its own counsel, except that the Company shall reimburse the Underwriter at the time of closing the amount, not to exceed $5,000, for the Underwriter's accountable reasonable fees and expenses (including, but not limited to, out-of-pocket items such as legal fees, travel, accommodations, telephone expenses, courier fees, suppliers, and related disbursements) incurred in connection herewith exceed the underwriting portion of the gross spread.
(o) At no time during the period of one year following the Effective Date will the Company's officers, directors (including persons serving in such capacities as of the time of closing or during any part of the period mentioned above), or any national securities exchangeowners, beneficially or of record, of 5% or more of the issued and outstanding common stock of the Company as listed in the Prospectus (together the "Described Stockholders") offer for sale or sell, directly or indirectly, any common stock owned, directly or indirectly, by them without the Underwriter's prior written consent. At no time during the period of two years following the Effective Date will any Described Stockholder offer for sale or sell, directly or indirectly, any Shares of the common stock owned, directly or indirectly, by them at the time of closing without the Underwriter's prior written consent unless such Shares are sold to or through the Underwriter. The Company will take all appropriate actions to prevent any such offers or sales including the placing of a legend restricting transfer thereof to the foregoing effect on the stock certificate, with specific reference to this subsection of this agreement, the issuance of written "stop-transfer" instructions to the transfer agent, and the delivery to the Underwriter, at or prior to the execution of this agreement, of a written undertaking from each of the Described Stockholders agreeing to the provisions of this subsection.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before completion of the initial distribution of the offering of the Shares by the Underwriters of which the Representatives shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Representatives shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representatives and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice 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 and when any amendments thereto become post-effective amendment to the Registration Statement becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Registered Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereoforder.
(bc) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event The Company shall have occurred as a result of which file the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, 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 prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Representatives) which will correct such statement or omission and will use its best efforts to have any amendment to in accordance with the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies requirements of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably requestAct.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to give the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 end Representatives notice of its fiscal quarter in which the first anniversary date of the effective date of intention to file or prepare any amendment to the Registration 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 including any post-effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 Stockamendment) or any interest therein amendment or announce supplement to the Prospectus (including any intention to do any of the foregoing without the prior written consent of the Agent.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.revised prospectus which the
Appears in 1 contract
Samples: Underwriting Agreement (Team Communication Group Inc)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatUnderwriters as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possiblepracticable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and if Rule 430A furnished with a copy, or to which the Representative shall have objected or which is used not in compliance with the Act, the Exchange Act or the filing of Regulations.
(b) As soon as the Prospectus Company is otherwise required under Rule 424(b) advised or Rule 434obtains knowledge thereof, the Company will file advise the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within Representative and confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement, as amended, 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 and when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings thereforfor that purpose, (viii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission Commission; and (viv) of the receipt any request by the Company of Commission for any notification with respect amendment to the suspension of Registration Statement or any amendment or supplement to the qualification of the Shares Prospectus or for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeadditional information. If the Commission or any state securities commission authority shall propose or enter a stop order or suspend such qualification at any time, the Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain promptly the lifting of such order as soon as possible. order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) in accordance with the requirements of the Act.
(d) The Company will not give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Offered Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) of the Regulations), and will furnish the Representative 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 to which the Representative or Camhy Xxxxxxxxx & Xxxxx LLP ("Underwriters' Counsel") shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Offered Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or become subject to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agree that differs from the prospectus on file such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement such jurisdiction to which you shall reasonably object in writing after being timely furnished in advance a copy thereofcontinue such qualification.
(bf) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply 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 Offered Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Shares Offered Securities is required to be delivered under the Securities Act Act, any event shall have occurred as a result of which which, in the Prospectus opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented wouldsupplemented, in the judgment of the Agent or the Company, include includes an 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsAct, the Company will notify you the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments theretoUnderwriters' Counsel, and the Company will promptly deliver furnish to each of the Agent such number of Underwriters copies of any preliminary prospectus, such amendment or supplement as soon as available and in such quantities as the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you Underwriters may reasonably request.
(dg) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as As soon as practicable, but in any event not later than 45 days after the end of its the 12-month period beginning on the day after the end of the fiscal quarter in of the Company during which the first anniversary date of the effective date of the Registration Statement occursoccurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement (which will be in form complying with the detail required by, and will otherwise comply with, the provisions of Rule 158 Section 11(a) of the Securities Act and Rule 158(a) of the Regulations) , which statement need not be audited unless required by the Act, covering a period of at least twelve 12 consecutive months beginning after the effective date of the Registration Statement.
(fh) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from five (5) years after the date hereof, the Company will notfurnish to its stockholders, annual reports (including financial statements audited by independent public accountants) as required by the Exchange Act, and will not permit deliver to the Representative:
(i) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(ii) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the American Stock Exchange or any securities exchange;
(iii) every press release and every material news item or article of interest to the financial community in respect of the Company or its affiliates, directly affairs which was released or indirectly, to issue, sell, offer prepared by or agree to sell, grant on behalf of the Company; and
(iv) any option for additional information of a public nature concerning the sale of, pledge, make Company (and any short sale future subsidiaries) or maintain any short position, establish or its businesses which the Representative may reasonably request.
(i) The Company will maintain a transfer agent (the "put equivalent position" (within the meaning of Rule 16a-1(hTransfer Agent") and, if necessary under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any jurisdiction of incorporation of the economic consequences of ownership of Company, a registrar (which may be the same entity as the transfer agent) for 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 and the foregoing without the prior written consent of the AgentRedeemable Warrants.
(gj) During a period The Company will furnish to the Representative or on the Represen- tative's order, without charge, at such place as the Representative may designate, copies of three years from each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed Lock-up Agreements. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company shall use its best efforts to cause its officers, directors, stockholders or affiliates (within the meaning of the Regulations) not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, unlawful stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities substantially in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Regulations.
(o) The Company shall cause the Common Stock and Redeemable Warrants to be listed on the American Stock Exchange, and for a period of two (2) years from the date hereof shall use its best efforts to maintain the listing of the Common Stock and Redeemable Warrants to the extent outstanding.
(p) For a period of two (2) years from the Closing Date, the Company shall furnish to you copies the Representative, at the Company's sole expense, monthly consolidated transfer sheets relating to the, Common Stock and Redeemable Warrants.
(q) For a period of five (5) years after the effective date of the Registration Statement the Company shall, at the Company's sole expense, take all necessary and appropriate actions and use reasonable efforts to further qualify the Common Stock and Redeemable Warrants in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the Blue Sky laws of those jurisdictions which do not require the Company to qualify as a foreign corporation or to file a general consent to service of process.
(r) The Company (i) prior to the effective date of the Registration Statement, has filed a Form 8-A with the Commission providing for the registration of the Common Stock and Redeemable Warrants under the Exchange Act and (ii) as soon as practicable, will use its reasonable best efforts to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and to continue such inclusion for a period of not less than five (5) years.
(s) The Company agrees that for a period of twelve (12) months following the effective date of the Registration Statement it will not, without the prior written consent of National, directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any Covered Securities, except that the Company may (i) issue shares upon exercise of the Bridge Warrants (as defined in the Prospectus), (ii) grant options pursuant to its 1996 Stock Option plan (described in the Prospectus under "Management -- Stock Option Plan"), provided that the optionee is subject to (or upon receipt of the option agrees to be subject to) a Lock-up Agreement, and (iii) issue shares upon the exercise of stock options that are currently outstanding, or that this Prospectus contemplates will be granted prior to completion of the Offering or that are hereafter granted in accordance with the preceding clause or otherwise dispose of any Common Stock, or securities convertible into Common Stock, except for the issuance of the Option Securities, the Representative's Warrants, and shares of Common Stock issued upon the exercise of currently outstanding warrants or options, or options and warrants granted in the ordinary course of business consistent with prior practice.
(t) Until the completion of the distribution of the Offered Securities, the Company shall not without the prior written consent of National or Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) all reports to its stockholders; five (5) years from the date hereof, and (ii) the sale to the public of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of an appropriate form for the registration under the Act of the Representative's Securities.
(v) The Company agrees that it shall use its best efforts, which shall include, but shall not be limited to, the solicitation of proxies, to cause one (1) designee of National to be elected to the Company's Board of Directors for a period of three (3) years following the date hereof, provided that such designee is reasonably acceptable to the Company and that such director may be excluded from consideration of certain confidential matters which, in the good faith judgment of a majority of the other directors, such director's presence would not be appropriate. In the event that National elects not to designate a person to serve on the Board of Directors of the Company, National shall have the right to designate one person to attend the meetings of the Board of Directors of the Company. Such person shall be entitled to attend all reports, financial statements such meetings and proxy or information statements filed to receive all notices and other correspondence and communication sent by the Company to its Board of Directors. The Company agrees to reimburse the designee of National for all such designee's reasonable out-of-pocket expenses incurred in connection with such meetings.
(w) The Company agrees that within forty-five (45) days after the Closing it shall retain a public relations firm which is reasonably acceptable to National (it being agreed that the firm currently being used by the Company is acceptable). The Company shall keep such public relations firm, or any replacement, for a period of two (2) years from the Closing. Any replacement public relations firm shall be retained only with the Commission consent of National, which shall not be unreasonably withheld.
(x) The Company agrees that any and all future transactions between the Company and its officers, directors, principal stockholders and the affiliates of the foregoing persons will be on terms no less favorable to the Company than could reasonably be obtained in arm's length transactions with independent third parties, and that any such transactions also be approved by a majority of the Company's outside independent directors disinterested in the transaction.
(y) The Company shall prepare and deliver, at the Company's sole expense, to National within the one hundred and twenty (120) day period after the later of the effective date of the Registration Statement or any national securities exchangethe latest Option Closing Date, as the case may be, one bound volume containing all correspondence with regulatory officials, agreements, documents and all other materials in connection with the offering as requested by the Underwriters' Counsel.
Appears in 1 contract
Samples: Underwriting Agreement (Integrated Technology Usa Inc)
Covenants of the Company. (a) The Company covenants and agrees with as follows that at all times prior to the ------------------------ Agent thatTermination Date:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, in a form approved by the Company will Underwriter and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed Rules no 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 period and will provide evidence satisfactory to you of such timely filing. If as may be required by the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Securities Act.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice shall promptly advise the Underwriter in writing)
writing (i) when any amendment to the Registration Statement and any amendments thereto shall have become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing prevention or suspension of the use of a preliminary prospectus, if any, or the delivery to the Commission for filing of any amendment of Prospectus 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 Registration Statement or any post-effective amendment thereto the institution or of the initiation, or the threatening, threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose and (viiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus (other than by filing of any report with the Commission shall propose pursuant to Sections 13, 14 or enter a stop order at any time, 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement and the Prospectus) unless the Company will has furnished the Underwriter a copy of such amendment or supplement for its review prior to filing and shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(biii) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, therein in the light of the circumstances under which they were made, made 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 RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of clause (ii) of this Section 5(a), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and will use its best efforts to have any amendment to the Registration Statement declared effective Underwriter as soon as possiblepracticable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(cv) The Company will promptly deliver shall furnish to you two the Underwriter and its counsel, without charge, signed copies of the Registration Statement, Statement (including all exhibits thereto and amendments thereof) and all amendments theretothereof, and so long as delivery of a prospectus by an Underwriter or dealer may be required by the Company will promptly deliver to each of Securities Act or the Agent such number of Rules, as many copies of any preliminary prospectus, prospectus and the Prospectus, the Registration Statement, Prospectus and all any amendments of thereof and supplements to such documents, if any, thereto as you the Underwriter may reasonably request.. If applicable, the copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(dvi) The Company will endeavor shall cooperate with the Underwriter and its counsel in good faith, in cooperation with you, at or prior endeavoring to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Underwriter may designate and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of processprocess in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(evii) The Company will make generally available (within Company, during the meaning of Section 11(a) of period when the Securities Act) Prospectus is required 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 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) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated be delivered under the Securities Act which is exempt from registration under and the Securities Rules or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(viii) The Company, during the period of 90 days from when the date hereofProspectus is required to be delivered under the Securities Act and the Rules or the Exchange Act, shall make all filings required under applicable securities laws and by the Company will not, and will not permit Nasdaq National Market (including any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) required registration under the Exchange Act).
(ix) Prior to any Closing Date, enter into any swap, derivative transaction the Company will issue no press release or other arrangement that transfers communications directly or indirectly and hold no press conference with respect 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 transactions contemplated 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 foregoing this Agreement without the prior written consent of the AgentUnderwriter (which shall not be unreasonably withheld or delayed) unless in the judgment of the Company and its counsel, and after notification to the Underwriter, such press release or communication is required by law.
(gx) During a period of three years The Company will apply the net proceeds from the effective date offering of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(xi) The Company shall maintain the listing of the Common Stock on Nasdaq and shall as soon as reasonably practicable list any Shares issuable under this Agreement on Nasdaq.
(b) The Company agrees to pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration StatementStatement including all exhibits thereto, each preliminary prospectus, if any, the Company will furnish Prospectus, all amendments and supplements to you the Registration Statement and the Prospectus and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of the certificates for the Shares to the Underwriter; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 5(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriter in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda, provided that the fees and disbursements pursuant to this clause (iii) shall not exceed $5,000; (iv) the furnishing (including costs of shipping and mailing) to the Underwriter of copies of each preliminary prospectus, if any, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriter or by dealers to whom the Shares may be sold; (iv) all reports to the filing fees of the NASD in connection with its stockholdersreview of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriter in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (iivii) all reportstransfer taxes, financial statements if any, with respect to the sale and proxy or information statements filed delivery of the Shares by the Company with to the Commission Underwriter. Subject to the provisions of Section 11, the Underwriter agrees to pay, whether or any national securities exchangenot the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriter under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriter.
Appears in 1 contract
Covenants of the Company. (a) The Company covenants and agrees with the ------------------------ Agent thatas follows:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will 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 shall prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will and file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed 1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time period and will provide evidence satisfactory to you of such timely filing. If as may be required by the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434Rules.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice shall promptly advise the Placement Agent in writing)
, during any period when the General Disclosure Package or the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, (iA) when any post-effective amendment to the Registration Statement and shall have become effective or any amendments thereto become effectivesupplement to the General Disclosure Package or the Prospectus shall have been filed, (iiB) of any request by the Commission for any amendment of or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (ivC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of the initiation, General Disclosure Package or the threatening, institution or threatening of any proceedings therefor, (v) of the receipt of any comments from the Commission proceeding for that purpose and (viD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that such purpose. If The Company shall not, during such period as the Commission shall propose Prospectus (or enter a stop order if, at any timetime when the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to Investors) would be required by law to be delivered in connection with sales of the Shares in connection with the offering contemplated by this Agreement, file any amendment to the Registration Statement or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference in the Registration Statement unless the Company will has furnished the Placement Agent a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Placement Agent reasonably object. The Company shall 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 Company will not file any amendment to possible the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy withdrawal thereof.
(biii) If If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities 1933 Act and the Rules, any event shall have occurred occurs as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, would include an 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, therein in the light of the circumstances under which they were made, made 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 1933 Act or the Securities Act RegulationsRules, the Company will notify you promptly and shall prepare and file with the Commission Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an appropriate amendment or supplement (in form and substance satisfactory to you) which will shall correct such statement or omission and will use its best efforts to have any or an amendment to the Registration Statement declared effective as soon as possiblewhich shall effect such compliance.
(civ) The Company will promptly deliver timely file such reports pursuant to you two signed the 1934 Act as are necessary to make generally available to its security holders as soon as practicable, an earnings statement which shall provide the benefits contemplated by the provisions of Section 11(a) of the 1933 Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Placement Agent and counsel for the Placement Agent, without charge, a copy of the Registration Statement (including all exhibits thereto and amendments thereof) and, so long as delivery of a prospectus by a placement agent or dealer may be required by the 1933 Act or the Rules, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Placement Agent may reasonably request. If applicable, the copies of the Registration Statement, including exhibits the General Disclosure Package and all amendments theretoProspectus and each amendment and supplement thereto furnished to the Placement Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, and except to the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.extent permitted by Regulation S-T.
(dvi) The Company will endeavor in good faithshall use its commercially reasonable efforts, in cooperation with youthe Placement Agent and its counsel, at or prior in endeavoring to the time of effectiveness of the Registration Statement, to qualify, if necessary, qualify the Shares for offering offer and sale in connection with the offering under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate the Placement Agent shall reasonably request and to shall maintain such qualification qualifications in effect for so long as required for the distribution thereofof the Shares; except provided, however, that in no event shall the Company shall not be obligated required in connection therewith therewith, as a condition thereof, to qualify as a foreign corporation or a dealer or to execute a general consent to service of processprocess in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(evii) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act and the Rules or the 1934 Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act within the time periods required by the 1934 Act and the regulations promulgated thereunder.
(viii) On or before the Closing Date, the Company shall make all filings required under applicable securities laws and by the Nasdaq Stock Market.
(ix) Prior to the earlier of the termination of this Agreement or the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business affairs or business prospects, or the offering of the Shares without the prior written consent of the Placement Agent, which consent shall not be unreasonably withheld or delayed, unless in the judgment of the Company and its counsel, and after notification to the Placement Agent, such press release or communication is required by law.
(x) The Company will make generally available (within apply the meaning of Section 11(a) net proceeds from the offering of the Securities Act) to its security holders Shares in the manner set forth under “Use of Proceeds” in the General Disclosure Package 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 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 StatementProspectus.
(fxi) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in For a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from after the date hereofof the Prospectus, the Company will notnot (i) offer, and will not permit pledge, announce the intention to sell, sell, contract to sell, sell any of its affiliatesoption or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the Securities and Exchange Commission a registration statement under the 1933 Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or publicly disclose the intention to issuemake any offer, sell, offer or agree to sell, grant any option for the sale ofsale, pledge, make any short sale disposition or maintain any short positionfiling, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(hii) under the Exchange Act), enter into any swap, derivative transaction swap or other arrangement agreement that transfers to anothertransfers, in whole or in part, any of the economic consequences of ownership of the Common Stock (or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock, Stock or such other securities, in cash or other consideration) or otherwise dispose ofotherwise, 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 foregoing without the prior written consent of the Placement Agent, other than (a) the Shares to be sold hereunder, (b) the issuance and sale by the Company of shares of Common Stock pursuant to any stock incentive plan of the Company in effect at the Closing Date as described or contemplated in the Registration Statement Prospectus, (c) the issuance by the Company of Common Stock pursuant to its dividend reinvestment plan, (d) the issuance by the Company of shares of Common Stock, options to purchase shares of Common Stock and other equity-based incentive awards pursuant to stock option and other equity compensation plans that are in effect on the date of this Agreement; (e) the issuance by the Company of Common Stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction or the filing of a registration statement with the Commission relating to such issuance.
(gxii) During The Company represents and agrees that, unless it obtains the prior consent of the Placement Agent and the Placement Agent 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 the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a period “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Placement Agent and the Company is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus”. The Company represents that it has treated or agrees that it will treat each Issuer 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 three years from Rule 433 applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the effective date Commission where required, legending and record keeping; any Issuer Permitted Free Writing Prospectus the use of which has been consented to by the Placement Agent is listed on Exhibit E hereto. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
(b) The Company agrees to pay, or reimburse if paid by the Placement Agent, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, the following costs and expenses: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, the General Disclosure Package, the Prospectus, the Issuer Permitted Free Writing Prospectus, all amendments and supplements to the Registration Statement, the Company will furnish General Disclosure Package, the Prospectus and the Issuer Permitted Free Writing Prospectus and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to you in Section 4(a)(vi); (iii) the furnishing (including costs of shipping and mailing) to the Placement Agent of copies of the General Disclosure Package, the Prospectus, the Issuer Permitted Free Writing Prospectus and all amendments or supplements to the General Disclosure Package, the Prospectus and the Issuer Permitted Free Writing Prospectus, and of the several documents required by this Section 4 to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares; (iiv) all reports any filing fees incident to, and the reasonable fees and disbursements of counsel to its stockholdersthe Placement Agent in connection with, the review by FINRA of the terms of the offering of the Shares; (v) inclusion of the Shares for quotation on the Nasdaq GSM; (vi) the costs and expenses of the Company and the Placement Agent relating to investor presentations on any “road show” undertaken in connection with the marketing of the Shares, including without limitation, expenses associated with the production of road show slides and graphics, reasonable travel and lodging expenses of representatives of the officers of the Company and the Placement Agent and expenses associated with the recording and/or transmission of the road show or electronic road show through the Internet or by other electronic means; (vii) the fees and disbursements of the Company’s counsel and accountants and other advisors in connection with the offering of the Shares; and (iiviii) all reportsthe Placement Agent’s reasonable travel, financial statements legal and proxy or information statements filed other out-of-pocket expenses incurred by the Placement Agent in performing the services hereunder, including reasonable legal fees of its counsel; provided, however, that the expenses in this clause (viii) and clause (iv) above shall not exceed in the aggregate $75,000 without the Company’s prior written consent. All expense reimbursements required to be made hereby by the Company with to the Commission or any national securities exchangePlacement Agent shall be made within thirty (30) days of the date of the Company’s receipt of sufficient evidence of such expenses.
Appears in 1 contract
Samples: Placement Agency Agreement (Seacoast Banking Corp of Florida)
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent Underwriters that:
2.1 During the period beginning on the date hereof and ending on the completion of the distribution of the Offered Shares as contemplated in this Agreement and in the US Prospectus (i) If the “US Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462 Registration Statement has or the US Prospectus, the Company shall furnish to the Underwriters for review a copy of each such proposed amendment or supplement, and the Company shall not yet been declared effective on file any such proposed amendment or supplement to which the Underwriters reasonably objects.
2.2 After the date of this Agreement, the Company will use its best efforts to cause shall promptly advise the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing Underwriters in writing (i) of the Prospectus is otherwise required under Rule 424(b) receipt of any comments of, or Rule 434, requests for additional or supplemental information from 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.
SEC; (ii) The Company will notify you immediately (andduring the US Prospectus Delivery Period, if requested by you, will confirm such notice in writing)
(i) when of the Registration Statement time and any amendments thereto become effective, (ii) date of any request by the Commission for filing of any post-effective amendment of or supplement to the Registration Statement or any amendment or supplement to the US Prospectus or for any additional information, Issuer Free Writing Prospectus; (iii) of the mailing or the delivery to the Commission for filing of time and date that any post-effective amendment of or supplement to the Registration Statement or the Prospectus, becomes effective; and (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending its use or the use of the US Prospectus or any Issuer Free Writing Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Shares from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the initiation, threatening or the threatening, initiation of any proceedings therefor, (v) for any of the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposesuch purposes. If the Commission SEC shall propose or enter a any such stop order at any time, the Company will use its reasonable 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 Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered Rules 424(b), 430A and 430B, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the SEC (without reliance on Rule 424(b)(8)).
2.3 (i) During the US Prospectus Delivery Period, the Company will comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, and by the 1934 Act, as now and hereafter amended, so far as necessary to permit the continuance of sales of or dealings in the Offered Shares as contemplated by the provisions hereof, the Registration Statement and the US Prospectus. If during such period any event shall have occurred occurs as a result of which the US Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it shall be is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriters or their counsel to amend the Registration Statement or supplement the US Prospectus to comply with the Securities Act or Registration Statement to file under the 1934 Act any document that would be deemed to be incorporated by reference in the US Prospectus in order to comply with the Securities Act or the Securities Act Regulations1934 Act, the Company will promptly notify you promptly the Underwriters and prepare and file with will amend the Commission an appropriate amendment Registration Statement or supplement the US Prospectus or file such document (in form and substance satisfactory at the expense of the Company) so as to you) which will correct such statement or omission and will use its best efforts to have or effect such compliance; or (ii) if at any amendment to time following the Registration Statement declared effective issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as soon as possible.
(c) The Company will promptly deliver to you two signed copies a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, including exhibits and all amendments theretoany preliminary prospectus supplement or the US Prospectus, and or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the Company will promptly deliver to each statements therein, in the light of the Agent such number of copies of any preliminary prospectuscircumstances prevailing at that subsequent time, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the 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 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 Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofmisleading, the Company has promptly notified or promptly will notnotify the Underwriters and has promptly amended or will promptly amend or supplement, and will not permit any of at its affiliatesown expense, directly such Issuer Free Writing Prospectus to eliminate or indirectlycorrect such conflict, to issue, sell, offer untrue statement or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agentomission.
(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 stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of ------------------------ the ------------------------ Agent Underwriters that:
(i) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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.
(iia) The Company will notify you the Underwriters immediately (and, if requested by youthe Underwriters, will confirm such notice in writing)
(i) when any post-effective amendment to the Registration Statement and any amendments thereto become becomes effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or Statement, the Prospectus Supplement or Form 8-K or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of the Prospectus Supplement or any amendment of or supplement to the Registration Statement or the ProspectusProspectus Supplement or any document to be filed pursuant to the Exchange Act during any period when the Prospectus Supplement is required to be delivered under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-post- effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The Company shall maintain continuous registration of the shares of Class A Common Stock underlying the notes with the Commission. If the Commission shall propose or enter a stop order at any time, 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 Company will not file any post-effective amendment to the Registration Statement or any amendment of or supplement to the Prospectus Supplement (including any revised prospectus supplement which the Company proposes for use by the Underwriters in connection with the offering of the Notes which differs from the prospectus supplement filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, whether or not such revised prospectus supplement is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement Securities Act Regulations) to which you the Underwriters or Underwriters' Counsel (as hereinafter defined) shall reasonably object in writing after being timely furnished in advance object, will furnish the Underwriters with copies of any such amendment or supplement a copy thereofreasonable 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 supplement to which the Underwriters or counsel for the Underwriters shall reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred occur as a result of which the Prospectus as then amended Supplement or supplemented Form 8-K would, in the judgment of the Agent Underwriters or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus Supplement or the Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to youthe Underwriters) which will correct such statement or omission and or which will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possibleeffect such compliance.
(c) The Company will promptly deliver has delivered to you two the Underwriters a signed copies copy of the Registration StatementStatement as originally filed, including exhibits exhibits, and all amendments thereto, and the Company will promptly deliver to each of the Agent Underwriters, from time to time during the period that the Prospectus Supplement is required to be delivered under the Securities Act, such number of copies of any preliminary prospectus, the Prospectus, Prospectus Supplement and the Registration Statement, and all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementUnderwriters, to qualify, if necessary, qualify the Shares Notes for offering and sale under the securities laws relating to the offering or sale of the Shares Notes of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you the Underwriters 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 occursoccurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), 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 StatementProspectus Supplement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during During the period of 90 days from the date hereofof the Prospectus Supplement, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issuewithout the prior written consent of Bear, Xxxxxxx & Co. Inc, offer, sell, offer or agree contract to sell, grant any option for the sale ofto purchase, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) pledge or otherwise dispose of(or announce any offer, sale, contract to sell, grant of an option to purchase, pledge or other disposition) of any shares of Class A Common Stock (of the Company or any securities convertible into, into or exercisable for or exchangeable for such Class A Common Stock, except that the Company may issue (i) shares of Class A Common Stock and options to purchase Class A Common Stock under its 1998 Shares Award Plan and Employee Stock Purchase Plan, (ii) shares of Class A Common Stock upon exercise of warrants to purchase Class A Common Stock or conversion of notes and other convertible securities that were issued and outstanding on the date of the Prospectus Supplement, (iii) shares of Class A Common Stock in connection with strategic relationships and acquisitions of businesses, technologies and products complementary to those of the Company, so long as the recipients of such shares with respect to clause (iii) agree to be bound by a lock-up agreement substantially in the form of Exhibit C hereto (which shall --------- provide that any interest therein or announce any intention transferees and assigns of such recipients shall be bound by the lock-up agreement) for the remainder of the 90-day lock-up period, (iv) shares of Class A common stock to do satisfy its obligations, if any, to pay a dividend on any of its capital stock or interest on any of its debt securities, in each case, in accordance with the foregoing without terms of such security or (v) the prior written consent shares of Class A Common Stock as may be issued in the AgentConcurrent Offering.
(g) During a period of three years from the effective date of the Registration StatementProspectus Supplement, the Company will furnish to you the Underwriters copies of (i) all reports to its stockholders; 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 proceeds from the sale of the Notes as set forth under "Use of Proceeds" in the Prospectus Supplement.
(i) If the Company elects to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., New York City time, on the date of this Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus Supplement is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Xm Satellite Radio Holdings Inc)
Covenants of the Company. The Company covenants and agrees with Cxxxxxy xxxxxx xith xxxh of the ------------------------ Agent thatUnderwriters:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will 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 To prepare the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will in a form approved by you and to file the such Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within under the prescribed time period Act not later than Commission's close of business on the second business day following the execution and will provide evidence satisfactory to you delivery of such timely filing. If the Company elects to rely on Rule 434this Agreement, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(ii) The Company will notify you immediately (andor, if requested applicable, such earlier time as may be required by youRule 430A(a)(3) under the Act, will confirm such notice in writing)
(i) when the Registration Statement and to make no further amendment or any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or Prospectus which shall be reasonably disapproved by you promptly giving reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Prospectus or for any additional informationamended Prospectus has been filed and to furnish you copies thereof; to advise you, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectuspromptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any Preliminary Prospectus or any post-effective amendment thereto or of the initiation, or the threateningProspectus, of any proceedings therefor, (v) of the 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 Shares for offering or sale in any jurisdiction or jurisdiction, of the initiation or threatening of any proceeding for that any such purpose. If , or of any request by the Commission shall propose for the amending or enter a supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order at or of any timeorder preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, the Company will to use promptly its best efforts to prevent obtain the issuance withdrawal of any such stop order andthe order;
(b) Promptly, if issuedfrom time to time, to obtain take such action as you may reasonably request to qualify the lifting Shares for offering and sale under the securities laws of such order jurisdictions as soon you may request and to comply with such laws so as possible. The to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company will shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any amendment to jurisdiction;
(c) To furnish the Registration Statement or any amendment Underwriters with copies of or supplement to the Prospectus in such quantities and at such times as you may from time to time reasonably request (including such copies of the prospectus required Prospectus being delivered to be filed pursuant to Rule 424(b)or Rule 434) that differs from you no later than 3:00 p.m., Boston time, on the prospectus on file at later of the time first business day following the date of the execution of this Agreement and the effectiveness of the Initial Registration Statement before or after Statement), and, if the effective date delivery of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If prospectus is required at any time when a prospectus relating prior to the expiration of nine months after the time of issuance of the Prospectus in connection with the offering or sale of the Shares is required to be delivered under the Securities Act and if at such time any event events shall have occurred as a result of which the Prospectus as then amended or supplemented would, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or or, if for any other reason it shall be necessary at any time during such same period to amend or supplement the Prospectus or Registration Statement file a new registration statement and deliver a prospectus contained therein, in order to comply with the Securities Act or with respect to the Securities Act Regulationssale of the Shares, the Company will to notify you promptly and upon your request to prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Commission an appropriate amendment Prospectus or supplement (in form and substance satisfactory to you) a new prospectus which will correct such statement or omission omission, or effect such compliance, and will use its best efforts in case any Underwriter is required by law to have deliver a prospectus in connection with sales of any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and Shares at any time nine months or more after the Company will promptly deliver to each time of the Agent such number issue of copies of any preliminary prospectus, the Prospectus, upon your request but at the Registration Statementexpense of such Underwriter, to prepare and all amendments of and supplements deliver to such documents, if any, Underwriter as many copies as you may reasonably request.request of a new prospectus or an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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.
(e) The Company will To make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but in any event not later than 45 days after the forty-fifth (45th) day following the end of its the full fiscal quarter in which first occurring after the first anniversary date of the effective date of the Registration Statement occurs(as defined in Rule 158(c)), an earnings earning statement of the Company (in form which need not be audited) complying with Section 11(a) of the provisions Act and the rules and regulations of the Commission thereunder (including Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge or otherwise dispose of or agree to do any of the foregoing, directly or indirectly, or announce an intention to do any of the foregoing, any Common Stock or securities of the Company which are substantially similar to the Shares or which are convertible into or exercisable for such Common Stock or securities, without your prior written consent other than (i) the sale of the Shares to be sold by the Company hereunder and (ii) the Company's issuance of shares subject to an option outstanding on the date hereof as disclosed in the Prospectus and the award of options under its stock plans in amounts not in excess of the amount shown as available for grant in the Prospectus;
(f) Not to grant options to purchase shares of Common Stock which would become exercisable during a period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus and not to accelerate the vesting of any option issued under any stock option plan such that any such option may be exercised within 180 days from the date of the Prospectus;
(g) To furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flow of the Company certified by independent public accountants) and to make available (within the meaning of Rule 158 158(b) under the Act) as soon as practicable after the end of each of the Securities Act Regulations) covering a period first three quarters of at least twelve consecutive months each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement.), consolidated summary financial information of the Company for such quarter in reasonable detail;
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereof, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent.
(gh) During a period of three five years from the effective date of the Registration Statement, to furnish to you upon your request copies of all reports or other communications (financial or other) furnished to shareholders generally, and deliver to you as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission, the Nasdaq National Market or any national securities exchange on which any class -11- UNDERWRITING AGREEMENT of securities of the Company is listed (such financial statements to be on a combined or consolidated basis to the extent the accounts of the Company are combined or consolidated in reports furnished to its shareholders generally or to the Commission) in each case if such reports, other communications or financial statements are not immediately available electronically via EDGAR;
(i) To use the net proceeds acquired by it from thx xxxe of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds" and in a manner such that the Company will furnish not become an "investment company" as that term is defined in the Investment Company Act;
(j) To use its best efforts to you copies of list for quotation the Shares on the Nasdaq National Market System;
(ik) To file promptly all reports to its stockholders; and (ii) all reports, financial statements and any definitive proxy or information statements statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or any national securities exchangesale of the Shares; and
(l) If the Company elects to rely upon rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Covenants of the Company. THE MHC, THE MID-TIER HC AND THE BANK. The Company covenants Company, the MHC, the Mid-Tier HC and agrees the Bank covenant with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this AgreementThe Company, the Company will 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 434MHC, the Company will file Mid-Tier HC and 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 Bank will prepare and file such amendments or supplements to the Registration Statement, the Prospectus, the Conversion Application, the Members' Proxy Statement and the Stockholders' Proxy Statement as may hereafter be required by the Commission Regulations or the OTS Regulations or as may hereafter be requested by the Agent. Following completion of the Subscription and Community Offering, in the event of a term sheet that complies Syndicated Community Offering, the Company, the MHC, the Mid-Tier HC and the Bank will (i) promptly prepare and file with the requirements Commission a post-effective amendment to the Registration Statement relating to the results of Rule 434.
the Subscription and Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective amendment is required, will file with the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription and Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either case in a form acceptable to the Agent. The Company Company, the MHC, the Mid-Tier HC and the Bank will notify you immediately (andthe Agent immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment of the Registration Statement Statement, the filing of any supplement to the Prospectus and the filing of any amendments thereto become effectiveamendment to the Conversion Application, (ii) of the receipt of any comments from the OTS or the Commission with respect to the transactions contemplated by this Agreement or the Plan, (iii) of any request by the Commission or the OTS for any amendment of or supplement to the Registration Statement or the Conversion Application or any amendment or supplement to the Prospectus or for any additional information, (iiiiv) of the mailing issuance by the OTS of any order suspending the Offerings or the delivery to use of the Commission for filing Prospectus or the initiation of any amendment of or supplement to the Registration Statement or the Prospectusproceedings for that purpose, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification notice with respect to the suspension of the any qualification of the Shares Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that purposejurisdiction. If the Commission shall propose or enter a stop order at any timeThe Company, the Company MHC, the Mid-Tier HC and the Bank 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 the lifting thereof at the earliest possible moment.
(b) The Company, the MHC, the Mid-Tier HC and the Bank will give the Agent notice of such order as soon as possible. The Company will not its intention to file or prepare any amendment to the Conversion Application or Registration Statement (including any posteffective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the Commission at the time of the effectiveness of the Registration Statement before becomes effective, whether or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a not such revised prospectus relating to the Shares is required to be delivered under filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Agent 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 the Agent or counsel for the Agent may object.
(c) The Company, the MHC, the Mid-Tier HC and the Bank will deliver to the Agent as many signed copies and as many conformed copies of the Conversion Application and the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Agent may reasonably request, and from time to time such number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered, the Company, the MHC, the Mid-Tier HC and the Bank will comply, at their own expense, with all requirements imposed upon them by the OTS, by the applicable OTS Regulations, as from time to time in force, and by the Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(e) If any event or circumstance shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent, to amend or supplement the Registration Statement or Prospectus in order to make the Prospectus not misleading in the light of the Agent or circumstances existing at the time it is delivered to a purchaser, the Company, the MHC, the Mid-Tier HC and the Bank will forthwith amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Registration Statement or Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading, or if it shall be necessary at any time to amend or supplement and the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsCompany, the Company MHC, the Mid-Tier HC and the Bank will notify you promptly and 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 furnish to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such a reasonable number of copies of any preliminary prospectussuch amendment or supplement. For the purpose of this subsection, the ProspectusCompany, the Registration StatementMHC, the Mid-Tier HC and all amendments of and supplements the Bank will each furnish such information with respect to such documents, if any, itself as you the Agent may from time to time reasonably request.
(df) The Company Company, the MHC, the Mid-Tier HC and the Bank will endeavor in good faithtake all necessary action, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementAgent, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states of the Shares of such United States and other jurisdictions as you the OTS Regulations may designate require and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall Agent and the Company have agreed; provided, however, that neither the Company, the MHC, the Mid-Tier HC nor the Bank shall be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company, the MHC, the Mid-Tier HC and the Bank will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eg) The Company authorizes Sandler X'Xxxxx and any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and consolidated statements of income, stockholders' equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the Bank for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(fj) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from time to time, such other information concerning the Company as the Agent may reasonably request.
(k) The Company, the MHC, the Mid-Tier HC and the Bank will conduct the Conversion in all material respects in accordance with the Plan, the OTS Regulations, the Commission Regulations and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company, the MHC, the Mid-Tier HC or the Bank by the OTS and the Commission.
(l) The Company, the MHC, the Mid-Tier HC and the Bank will comply, at their own expense, with all requirements imposed by the Commission and the OTS, or pursuant to the applicable Commission Regulations and OTS Regulations, as from time to time in force.
(m) The Company will promptly inform the Agent upon its receipt of service with respect to any material litigation or administrative action instituted with respect to the Conversion or the Offerings.
(n) Each of the Company and the Bank will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(o) The Company will report the use of proceeds from the Offerings on its first periodic report filed pursuant to Sections 13(a) and 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(p) For a period of not less than three years following the Conversion, the Company will not deregister the Securities. The Company will file with the Nasdaq National Market all documents and notices required for the quotation of the Securities and Exchange Shares on the Nasdaq National Market.
(q) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the National Association of Securities Dealers, Inc.'s "Interpretation Relating to Free-Riding and Withholding."
(r) Other than the Company's issuance of Common Stock, (i) pursuant to in connection with any existing employee benefit plans, (ii) upon the exercise, conversion plan or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction arrangement described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofProspectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities or Exchange Shares for a period of 180 days following the Closing Time.
(gs) During a the period of three years from beginning on the effective date hereof and ending on the later of the Registration Statementthird anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7, respectively, neither the Company, the MHC, the Mid-Tier HC nor the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(t) The Company, the MHC, the Mid-Tier HC and the Bank will comply with the conditions imposed by or agreed to with the OTS in connection with its approval of the Conversion Application.
(u) During the period ending on the first anniversary of the Closing Time, the Bank will comply with all applicable law and regulation necessary for the Bank to continue to be a "qualified thrift lender" within the meaning of 12 U.S.C. Section 1467a(m).
(v) The Company shall not deliver the Securities or the Exchange Shares until the Company, the MHC, the Mid-Tier HC and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived by the Agent.
(w) The Mid-Tier HC, Company or the Bank will furnish to you copies Sandler X'Xxxxx as early as practicable prior to the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Mid-Tier HC which have been read by KPMG LLP, as stated in their letters to be furnished pursuant to subsections (ie) all reports to its stockholders; and (iif) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchangeof Section 5 hereof.
Appears in 1 contract
Covenants of the Company. The Company Company, and in the case of Section 6(h), each of the Selling Stockholders, covenants and agrees with the ------------------------ Agent that:
(ia) If During the Registration Statement has not yet been declared effective on period when a prospectus relating to the date of this AgreementShares is required to be delivered under the 1933 Act, the Company will use its best efforts to cause the Registration Statement advise you and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing each 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) Selling Stockholders promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto Statements or of the initiation, or the threatening, institution of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company or of any notification with respect to of the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding proceedings for that purpose. If purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statements and if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the Offering, and will also advise you and each of the Selling Stockholders promptly of any request of the Commission shall propose for amendment or enter supplement of the Registration Statements, of any preliminary prospectus or of the Prospectus, or for additional information.
(b) During the period when a stop order at any timeprospectus relating to the Shares is required to be delivered under the 1933 Act, the Company will use give you and each of the Selling Stockholders notice of its best efforts intention to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file or prepare any amendment to the Registration Statements (including any post-effective amendment) or any Rule 462(b) Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use by the Underwriters in connection with the Offering which differs from the prospectus on file at the Commission at the time the Rule 429 Registration Statement became effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you and each of the effectiveness Selling Stockholders with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Registration Statement before case may be, and will not file any such amendment or after the effective date of the Registration Statement supplement or use any such prospectus to which you or counsel for the Underwriters shall reasonably object in writing after being timely furnished in advance a copy thereofobject.
(bc) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities 1933 Act any event shall have occurred occurs as a result of which the Prospectus as then amended Prospectus, including any amendments or supplemented wouldsupplements, in the judgment of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriters in connection with the Offering which differs from the prospectus on file with the Commission at the time of effectiveness of the Rule 429 Registration Statement, whether or Registration Statement not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or the Securities Act Regulations1933 Act, the Company promptly will notify advise you thereof and will promptly and 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 or an amendment which will use its best efforts effect such compliance; and, in case any Underwriter is required to have any amendment to deliver a prospectus nine months or more after the effective date of the Registration Statement declared effective Statements, the Company upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as soon as possiblemay be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(cd) The If at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statements or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary to make the statements therein, in light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly deliver notify you and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) Neither the Company nor any of its subsidiaries will acquire any capital stock of the Company prior to the earlier of the Second Closing Date or termination or expiration of the related option nor will the Company declare or pay any dividend or make any other distribution upon the Common Stock payable to stockholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except in either case as contemplated by the Prospectus.
(f) As soon as practicable, but not later than the date on which the Company would be required to file its reports under the Exchange Act containing such information, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Rule 429 Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(g) During the period when a prospectus relating to the Shares is required to be delivered under the 1933 Act, the Company will furnish to you two signed at its expense, subject to the provisions of subsection (d) hereof, copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectusStatements, the Prospectus, the Registration Statementany Permitted Free Writing Prospectus hereinafter defined, each preliminary prospectus and all amendments of and supplements to any such documents, if any, documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(dh) The Company and the Selling Stockholders will endeavor cooperate with the Underwriters in good faith, in cooperation with you, at qualifying or prior to the time of effectiveness of the Registration Statement, to qualify, if necessary, registering the Shares for offering and sale under the securities blue sky laws relating to the offering or sale of the Shares of such jurisdictions as you may designate designate, and to maintain will continue such qualification qualifications in effect for so long as reasonably required for the distribution thereof; except that in no event of the Shares. The Company shall the Company not be obligated in connection therewith required to qualify as a foreign corporation or to execute file a general consent to service of processprocess in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(ei) During the period of two years hereafter, the Company will furnish you and each of the other Underwriters with a copy (in each case, to the extent not publicly available on the Commission's EDGAR system) (i) as soon as practicable after the filing thxxxxx, of each report filed by the Company with the Commission, any securities exchange or FINRA; (ii) as soon as practicable after the release thereof, of each material press release in respect of the Company that is not disseminated via the Company's website or a national news service; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(j) The Company will make generally available (within use the meaning of Section 11(a) proceeds received by it from the sale of the Securities ActShares being sold by it in the manner specified in the Prospectus.
(k) to its security holders and to you as soon as practicableIf, but not later than 45 days after at the end time of its fiscal quarter in which the first anniversary date of the effective date effectiveness of the Registration Statement occursStatements, an earnings statement (any information shall have been omitted therefrom in form complying with reliance upon Rule 430B, then immediately following the provisions of Rule 158 execution of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) Other than the Company's issuance of Common Stock, (i) pursuant to any existing employee benefit plans, (ii) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofPricing Agreement, the Company will notprepare, and file or transmit for filing with the Commission in accordance with such Rule 430B and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430B, a post-effective amendment to the Registration Statements (including an amended Prospectus), containing all information so omitted. If required, the Company will prepare and file, or transmit for filing, a Rule 462(b) Registration Statement not later than the date of the execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(l) During the period when a prospectus relating to the Shares is required to be delivered under the 1933 Act, the Company will comply in all material respects with all registration, filing and reporting requirements of the Exchange Act, the Sarbanes-Oxley Act and the Exchange Rules.
(m) During the xxxxxx xxxx x prospectus relating to the Shares is required to be delivered under the 1933 Act, the Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by the Sarbanes-Oxley Act and the applicable regulations thereunder, xxxx xxx xxxigned to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to the Company, including its subsidiaries is made known to them by others within those entities.
(n) During the period when a prospectus relating to the Shares is required to be delivered under the 1933 Act, the Company will maintain a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; (iv) amounts reflected on the Company's consolidated balance sheet for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any of its affiliatesdifferences; and (v) the interactive data in XBRL included in the Company's filings under the Exchange Act fairly presents the information called for in all material respects and is prepared in accordance with the Commission's rules and guidelines applicable thereto.
(o) The Company agrees not to, directly or indirectly, to issue(i) offer, sellsell (including "short" selling), offer or agree assign, encumber, pledge, transfer, contract to sell, grant any an option for the sale of, pledge, make any short sale or maintain any short positionto purchase, establish or maintain a an open "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), or otherwise dispose of (or enter into any swaptransaction or device that is designed to, derivative transaction or could reasonably be expected to, result in the disposition at any time in the future of) any shares of Common Stock or securities, options or rights convertible or exchangeable into, or exercisable for, Common Stock; (ii) enter any swap or other arrangement that transfers to another, in whole all or in part, any a portion of the economic consequences of associated with the ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash ; or other consideration(iii) 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 publicly disclose the intention to do any of the foregoing (except, in each case, (a) Common Stock sold pursuant to this Agreement, (b) the grant of options and issuance of Common Stock pursuant to the Company's existing stock incentive plans, (c) the issuance of Common Stock upon the exercise of any outstanding options to purchase Common Stock, and (d) the issuance of Common Stock as consideration in any acquisition, provided that (x) the recipient of such shares of Common Stock agrees to be bound by the foregoing restrictions for the duration of the Lock-Up Period and (y) the total number of shares of Common Stock issued by the Company in connection with acquisitions shall not exceed 10% of the total number of shares of Common Stock then outstanding) without the prior written consent of the Agent.
(g) During Representative for a period of three years from 90 days (the effective "Lock-Up Period") after the date of the Registration StatementRule 424 Prospectus; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company will furnish releases earnings results or material news or a material event relating to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the Company with occurs or (2) prior to the Commission expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in either case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or any national securities exchangethe occurrence of the material news or material event, as applicable, unless the Representative waives, in writing, such extension.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the ------------------------ Agent that:
(ia) If It will promptly deliver to each of you a signed copy of the Registration Statement has as originally filed or, to the extent a signed copy is not yet been declared effective on available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable after the date of this Agreementhereof, the Company will 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 many copies of the Prospectus is otherwise required under Rule 424(bas of such date as you may reasonably request.
(c) or Rule 434, the Company It will file cause the Prospectus (properly completed if Rule 430A has been used) to be filed with the Commission pursuant to Rule 424(b) or Rule 434 within the prescribed time period 424 as soon as practicable and will provide evidence satisfactory to advise 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement and any amendments thereto become effective, (ii) issuance of any request by stop order under the Commission for any amendment of or supplement Securities Act with respect to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing 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 Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, institution of any proceedings therefor, (v) therefor of the receipt of any comments from the Commission and (vi) of the receipt by which the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purposeshall have received notice. If the Commission shall propose or enter a stop order at any time, the 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, during such period of time (not exceeding nine months) after the Prospectus has been filed with the Commission pursuant to obtain Rule 424 as in the lifting opinion of such Counsel for the Underwriters a prospectus covering the Debt Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, any event relating to or affecting the Company or of which the Company shall be advised in writing by you shall occur which in the Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order as soon as possible. The to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will not file any amendment to the Registration Statement or any amendment of will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to 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 (including the prospectus required to be filed ii) making an appropriate filing pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time Section 13 of the effectiveness of the Registration Statement before Exchange Act, which will supplement or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which amend the Prospectus so that, as then amended supplemented or supplemented wouldamended, in the judgment of the Agent or the Company, include an 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, in the light of the circumstances under which they were madewhen 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 any such amendment or if it shall be necessary at supplement. In case any time Underwriter is required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act Regulations, the Company will notify you promptly and prepare and file is filed with the Commission an appropriate amendment or supplement (in form and substance satisfactory pursuant to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectusRule 424, the ProspectusCompany, the Registration Statementupon your request, and all amendments of and supplements will furnish to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or prior supplements to the time of effectiveness Prospectus complying with Section 10(a) of the Registration Statement, to qualify, if necessary, the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; 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 processSecurities Act.
(e) The Company It will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you holders, 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 earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulationswhich need not be audited) covering a period of at least twelve 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 StatementStatement as defined in Rule 158 under the Securities Act.
(f) Other than It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Company's issuance Debt Securities for offer and sale under the blue-sky laws of Common Stocksuch jurisdictions as you may 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.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) pursuant to any existing employee benefit plansthe preparation and filing by it of the Registration Statement, (ii) upon the exercise, conversion or exchange issuance and delivery of any currently outstanding stock options or warrantsthe Debt Securities as provided in Section 5 hereof, (iii) in exchange for shares the qualification of MGV Energythe Debt Securities under blue-sky laws (including counsel fees not to exceed $7,500), Inc. currently held by minority shareholders thereof, or and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in a transaction described Section 6(d) hereof, of the Prospectus. The Company shall not, however, be required to pay any amount for any expenses of yours or any of the Underwriters, except that, if this Agreement shall be terminated in Rule 145(a)(2) accordance with the provisions of Section 7, 8 or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date 10 hereof, the Company will notreimburse 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 not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option reimburse the Underwriters for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to anothertheir reasonable out-of- pocket expenses, in whole or an aggregate amount not exceeding $5,000, incurred in part, contemplation of the performance of this Agreement. The Company shall not in any event be liable to any of the economic consequences several Underwriters for damages on account of ownership loss of anticipated profits.
(h) Prior to the Common Stock (whether any such transaction is to be settled by delivery of Common StockClosing Date the Company will not, 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 foregoing without the prior written consent of the Agent.
(g) During a period of three years from Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, on the effective date market in which the Debt Securities are being offered and sold, any securities of the Registration Statement, Company which are of the Company will furnish to you copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by same class as the Company with the Commission or any national securities exchangeDebt Securities.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the ------------------------ Agent thatManagers as follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this Agreement, the The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective (as promptly as possibleand when requested by the Lead Managers) and will notify the Lead Managers immediately, and if Rule 430A is used or confirm 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.
(ii) The Company will notify you immediately (and, if requested by you, will confirm such notice in writing)
, (i) when the Registration Statement and Statement, or any amendments thereto post-effective amendment to the Registration Statement, shall become effective, or any supplement to the Prospectuses or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement Prospectuses or the Prospectusfor additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto order preventing or suspending the use of any preliminary prospectus, or of the initiation, or the threatening, of any proceedings therefor, (v) of the 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 Shares Securities for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding for that any such purpose. If the Commission shall propose or enter a stop order at any time, the 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. any stop
(b) The Company will not give the Lead Managers notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment of or supplement to the Prospectus Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, (including any revised prospectuses which the Company proposes for use by the Managers or the U.S. Underwriters in connection with the offering of the Securities which differs from the prospectuses on file at the Commission at the time the Registration Statement first becomes effective, whether or not any such revised prospectus is required to be filed pursuant to Rule 424(b)or Rule 434424(b) that differs from the prospectus on file at the time of the effectiveness 1933 Act Regulations or any term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will furnish the Lead Managers 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 the Lead Managers or counsel for the Managers shall have reasonably objected; provided, however, that such objection shall not prevent the filing of any such amendment or supplement which, in the opinion of counsel for the Company, is required to be filed, pursuant to the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(c) The Company has furnished or will deliver to the Lead Managers and counsel for the Managers, without charge, signed copies of the Registration Statement before or after as originally filed and of each amendment thereto (including exhibits
(d) The Company will deliver to each Manager, without charge, from time to time until the effective date of the Registration Statement (or, if the Company has elected to which you shall rely upon Rule 430A, until such time the International Pricing Agreement is executed and delivered), as many copies of each preliminary prospectus as such Manager may reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating request, and the Company hereby consents to the Shares is use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Manager, without charge, from time to time during the period when the Prospectuses are required to be delivered under the Securities 1933 Act any event shall have occurred or the 1934 Act, such number of copies of the International Prospectus (as a result of which the Prospectus as then amended or supplemented wouldsupplemented) as such Manager may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder; provided, that, in the judgment event that a Manager is required to deliver an International Prospectus in connection with sales of any of the Agent or the Company, 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, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary International Securities at any time to amend nine months or supplement more after the Prospectus or Registration Statement to comply with time of issuance of the Securities Act or International Prospectus, upon the Securities Act Regulationsrequest of such Manager but at such Manager's expense, the Company will notify you promptly and prepare and deliver to such Manager as many copies as it may request of an International Prospectus (as amended or supplemented) complying with Section 10(a)(3) of the 1933 Act. The International Prospectus and any amendments or supplements thereto furnished to the Managers will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated by this Agreement, the U.S. Purchase Agreement and the Prospectuses. If, during the period in which a prospectus is required to be delivered by a Manager under the 1933 Act, any event
(f) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then following the execution of the International Pricing Agreement, the Company will prepare, and timely file with the Commission an appropriate in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of amended Prospectuses, or, if required by such Rule 430A, a post-effective amendment or supplement to the Registration Statement (in form and substance satisfactory to you) which will correct such statement or omission including amended Prospectuses), containing all information so omitted and will use its best efforts to have any cause such post-effective amendment to the Registration Statement be declared effective as soon promptly as possiblepracticable.
(cg) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faithendeavor, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementManagers and their counsel, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of the Shares of such jurisdictions as you the Lead Managers may designate and to maintain such qualification in effect for so long as required for the distribution thereofdesignate; except provided, however, that in no event shall the Company shall not be obligated in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a take any action that would subject the Company to general consent to service of process.
(e) The Company will make generally available (within process or taxation in any jurisdiction where it is not so subject at the meaning date 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 end of its fiscal quarter this Agreement. In each jurisdiction in which the first anniversary date Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of the effective date of the Registration Statement occurs, an earnings statement (such jurisdiction to continue such qualification in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering effect for a period of at least twelve consecutive months beginning after not less than one year from the effective date of the Registration Statement.
(fh) Other than the Company's issuance of Common StockThe Company will make generally available to its security holders as soon as practicable, but not later than
(i) pursuant to any existing employee benefit plans, [intentionally omitted]
(iij) upon the exercise, conversion or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in During a transaction described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 180 days from the date hereofof the International Pricing Agreement, the Company will not, and will not permit any without the prior written consent of its affiliatesMerrxxx Xxxcx Xxxernational, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 (capital stock of the Company or any securities security convertible into, or exchangeable into or exercisable for or exchangeable such capital stock (except for Common StockShares issued pursuant to employee benefit plans referred to in the Prospectuses, pursuant to the exercise of options referred to in the Prospectuses or pursuant to the employee stock purchase plan of the Company referred to in the Prospectuses) or file any interest therein or announce any intention registration statement under the 1933 Act with respect to do any of the foregoing without (except for registration statements on Form S-8 with respect to employee benefit plans referred to in the prior written consent Prospectuses or the employee stock purchase plan of the AgentCompany referred to in the Prospectuses).
(gk) During a period In accordance with the Cuba Act and without limitation to the provisions of three years from the effective date of the Registration StatementSections 6 and 7 hereof, the Company will furnish agrees to you copies indemnify and hold harmless each Manager from and against any and all loss, liability, claim damage and expense whatsoever (including fees and disbursements of (i) all reports to its stockholders; and (ii) all reportscounsel), financial statements and proxy or information statements filed as incurred, arising out of any violation by the Company of the Cuba Act.
(l) The Company, during the period when the Prospectuses are required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission or any national securities exchangepursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
Appears in 1 contract
Samples: International Purchase Agreement (Apac Teleservices Inc)
Covenants of the Company. THE MHC AND THE BANK. The Company covenants Company, the MHC and agrees the Bank covenant with the ------------------------ Agent thatas follows:
(ia) If the Registration Statement has not yet been declared effective on the date of this AgreementThe Company, the Company will use its best efforts to cause MHC and 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 Bank will prepare and file such amendments or supplements to the Registration Statement, the Prospectus and the Plan as may hereafter be required by the Securities Act Regulations or the OTS Regulations or as may hereafter be requested by the Agent. Following completion of the Subscription and Community Offering, in the event of a term sheet that complies Syndicated Community Offering, the Company, the MHC and the Bank will (i) promptly prepare and file with the requirements Commission a post-effective amendment to the Registration Statement relating to the results of Rule 434.
the Subscription and Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective amendment is required, will file with the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription and Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either case in a form acceptable to the Agent. The Company Company, the MHC and the Bank will notify you immediately (andthe Agent immediately, if requested by you, will and confirm such the notice in writing)
, (i) when of the effectiveness of any post-effective amendment of the Registration Statement Statement, the filing of any supplement to the Prospectus and the filing of any amendments thereto become effectiveamendment to the Plan, (ii) of the receipt of any comments from the OTS or the Commission with respect to the transactions contemplated by this Agreement or the Plan, (iii) of any request by the Commission or the OTS for any amendment of or supplement to the Registration Statement or the Plan or any amendment or supplement to the Prospectus or for any additional information, (iiiiv) of the mailing issuance by the OTS of any order suspending the Offerings or the delivery to use of the Commission for filing Prospectus or the initiation of any amendment of or supplement to the Registration Statement or the Prospectusproceedings for that purpose, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, initiation of any proceedings thereforfor that purpose, (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification notice with respect to the suspension of the any qualification of the Shares Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for that purposejurisdiction. If the Commission shall propose or enter a stop order at any timeThe Company, the Company MHC and the Bank 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 the lifting thereof at the earliest possible moment.
(b) The Company, the MHC and the Bank will give the Agent notice of such order as soon as possible. The Company will not its intention to file or prepare any amendment to the Plan or Registration Statement (including any posteffective amendment) or any amendment of or supplement to the Prospectus (including any revised prospectus which the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the Commission at the time of the effectiveness of the Registration Statement before becomes effective, whether or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a not such revised prospectus relating to the Shares is required to be delivered under filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Agent 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 the Agent or counsel for the Agent may object.
(c) The Company, the MHC and the Bank will deliver to the Agent as many signed copies and as many conformed copies of the Plan and the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Agent may reasonably request, and from time to time such number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered, the Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed upon them by the OTS, by the applicable OTS Regulations, as from time to time in force, and by the Nasdaq National Market, the Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(e) If any event or circumstance shall have occurred occur as a result of which the Prospectus as then amended or supplemented wouldit is necessary, in the judgment opinion of counsel for the Agent, to amend or supplement the Registration Statement or Prospectus in order to make the Prospectus not misleading in the light of the Agent or circumstances existing at the time it is delivered to a purchaser, the Company, the MHC and the Bank will forthwith amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Registration Statement or Prospectus will not include an 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, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading, or if it shall be necessary at any time to amend or supplement and the Prospectus or Registration Statement to comply with the Securities Act or the Securities Act RegulationsCompany, the Company MHC and the Bank will notify you promptly and 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 furnish to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Agent such a reasonable number of copies of any preliminary prospectussuch amendment or supplement. For the purpose of this subsection, the ProspectusCompany, the Registration Statement, MHC and all amendments of and supplements the Bank will each furnish such information with respect to such documents, if any, itself as you the Agent may from time to time reasonably request.
(df) The Company Company, the MHC and the Bank will endeavor in good faithtake all necessary action, in cooperation with you, at or prior to the time of effectiveness of the Registration StatementAgent, to qualify, if necessary, qualify the Shares Securities for offering and sale under the applicable securities laws relating to the offering or sale of such states of the Shares of such United States and other jurisdictions as you the OTS Regulations may designate require and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall Agent and the Company have agreed; provided, however, that none of the Company, the MHC or the Bank shall be obligated in connection therewith to file any general consent to service of process or to qualify as a foreign corporation or in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company, the MHC and the Bank will file such statements and reports as may be required by the laws of such jurisdiction to execute continue such qualification in effect for a general consent to service period of processnot less than one year from the effective date of the Registration Statement.
(eg) The Company authorizes Sandler O'Neill and any Selected Dealxx xx xcx xx xxent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available (within the 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 60 days after the end of its fiscal quarter in which the first anniversary date close of the effective date of the Registration Statement occursperiod covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve consecutive months the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and consolidated statements of income, stockholders' equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the Bank for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(fj) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from time to time, such other information concerning the Company as the Agent may reasonably request.
(k) The Company, the MHC and the Bank will conduct the Offerings in all material respects in accordance with the Plan, the OTS Regulations, the Securities Act Regulations and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Offerings imposed upon the Company, the MHC or the Bank by the OTS and the Commission.
(l) The Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed by the Commission, the OTS and the Nasdaq National Market, or pursuant to the applicable Securities Act Regulations, OTS Regulations and Nasdaq National Market Regulations, as from time to time in force and will file with Nasdaq all documents and notices required by the NASD of companies that have issued securities that are trading on the Nasdaq National Market.
(m) The Company will promptly inform the Agent upon its receipt of service with respect to any material litigation or administrative action instituted with respect to the Offerings and will promptly inform the Agent of any material developments with respect to any such litigation or action.
(n) Each of the Company and the Bank will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(o) The Company will report the use of proceeds from the Offerings on its first periodic or current report required to be filed pursuant to Sections 13(a) and 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(p) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its filing obligations under the Exchange Act. The Company will use its best efforts to effect and maintain the listing of the Common Stock on the Nasdaq National Market and, once listed on the Nasdaq National Market, the Company will comply with all applicable corporate governance standards required by the Nasdaq National Market. The Company will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
(q) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with Rule 2790 of the National Association of Securities Dealers, Inc.
(r) Other than the Company's issuance of Common Stock, (i) pursuant to in connection with any existing employee benefit plans, (ii) upon the exercise, conversion plan or exchange of any currently outstanding stock options or warrants, (iii) in exchange for shares of MGV Energy, Inc. currently held by minority shareholders thereof, or (iv) in a transaction arrangement described in Rule 145(a)(2) or (3) promulgated under the Securities Act which is exempt from registration under the Securities Act, during the period of 90 days from the date hereofProspectus, the Company will not, and will not permit any of its affiliates, directly or indirectly, to issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of 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 foregoing without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities and the MHC Shares for a period of 180 days following the Closing Time.
(gs) During a the period of three years from beginning on the effective date hereof and ending on the later of the Registration Statementfifth anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7, respectively, none of the Company, the MHC or the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the common stock of the Bank becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(t) The Company, the MHC and the Bank will comply with the conditions imposed by or agreed to with the OTS in connection with its approval of the Plan.
(u) During the period ending on the first anniversary of the Closing Time, the Bank will comply with all applicable laws and regulations necessary for the Bank to continue to be a "qualified thrift lender" within the meaning of 12 U.S.C. Section 1467a(m).
(v) The Company shall not deliver the Securities until the Company, the MHC and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived in writing by the Agent.
(w) The Company, the MHC and the Bank will furnish to you copies Sandler O'Neill as early as practicable prixx xx xhe Closing Time, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company which have been read by Radics & Co., LLC, as stated in their letters to be furnished pursuant to subsections (if) all reports to its stockholders; and (iig) of Section 5 hereof.
(x) Each of the Company, the MHC and the Bank will conduct its business in compliance in all reportsmaterial respects with all applicable federal and state laws, financial statements rules, regulations, decisions, directives and proxy orders, including all decisions, directives and orders of the Commission, the Nasdaq National Market and the OTS.
(y) The Bank will not amend the Plan in any manner that would affect the sale of the Securities or information statements filed the terms of this Agreement without the consent of the Agent.
(z) The Company, the MHC and the Bank will not, prior to the Closing Time, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business consistent with past practice, except as contemplated by the Company with Prospectus.
(aa) The Company, the Commission MHC and the Bank will use all reasonable efforts to comply with, or any national securities exchangecause to be complied with, the conditions precedent to the several obligations of the Agent specified in Section 5 hereof.
Appears in 1 contract
