Further Agreements of the Company. The Company agrees: (a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. (d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing; (f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158); (g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; (h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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; (i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock; (j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date; (k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission; (l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and (m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Maker Communications Inc), Underwriting Agreement (Maker Communications Inc)
Further Agreements of the Company. The Company agreescovenants and agrees as follows:
(a) To The Company will (i) prepare and timely file with the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Commission under Rule 424(b) under a Prospectus containing information previously omitted at the Securities Act not later than the Commission's close time of business on the second business day following the execution and delivery effectiveness of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when in reliance on Rule 430A and (ii) not file any amendment to the Registration Statement or any Rule 462(bsupplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you shall have reasonably objected in writing or which is not in compliance in all material respects with the Securities Act or the rules and regulations of the Commission.
(b) The Company will promptly notify each Underwriter in the event of (i) the request by the Commission for amendment of the Registration Statement has been filed or becomes effective or any for supplement to the Prospectus or for any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representativesadditional information, promptly after it receives notice thereof, of (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, (iii) the institution or notice of intended institution of any order preventing action or suspending proceeding for that purpose, (iv) the use receipt by the Company of any Preliminary Prospectus or the Prospectus, of notification with respect to the suspension of the qualification of the Stock for offering or sale in any jurisdiction, or (v) the receipt by the Company of notice of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of . The Company will make every reasonable effort to prevent the issuance of any such a stop order or of and, if such an order shall at any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualificationtime be issued, to use promptly its best efforts to obtain its withdrawal;the withdrawal thereof at the earliest possible moment.
(bc) To furnish promptly The Company will (i) on or before the Closing Date, deliver to each of the Representatives and to counsel for the Underwriters you a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (ii) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Prospectus as you may reasonably request, and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the Commission, and each amendment thereto filed with as you may reasonably request for the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to purposes contemplated by the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed Securities Act. The copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally Preliminary Prospectus or Prospectus and each amendment or supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission and each amendment thereto pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(d) If at any time during the period in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of which a prospectus is required at by law to be delivered by an Underwriter or dealer any time after event relating to or affecting the Effective Time Company, or of which the Company shall be advised in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events writing by you, shall have occurred occur as a result of which it is necessary, in the reasonable 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 Stock, 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 include an will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when existing at the time such Prospectus is delivereddelivered to such purchaser, not misleading. If, orafter the public offering of the Stock by the Underwriters and during such period, the Underwriters shall propose to vary the terms of offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if in the reasonable opinion either of counsel for any other reason it shall be necessary to amend the Company or supplement of counsel for the Underwriters such proposed variation requires that the Prospectus in order to comply be supplemented or amended, the Company will forthwith prepare and file with the Securities ActCommission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and all dealers to whom any of the Stock may be sold by the several Underwriters to use the Prospectus, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly supplemented, in connection with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment sale of the Company or Stock in accordance with the Representatives, be required by applicable provisions of the Securities Act or requested by and the Commission;applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Prospectus or any Prospectus pursuant amended prospectus proposed to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;be filed.
(f) As soon The Company will cooperate, when and as practicable after requested by you, in the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement qualification of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering offer and sale under the securities or blue sky laws of such jurisdictions as you may designate and, during the Representatives may request and period in which a prospectus is required by law to comply with be delivered by an Underwriter or dealer, in keeping such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions for as long as may be necessary to complete the distribution of the Stockgood standing under said securities or blue sky laws; provided provided, however, that in connection therewith the Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;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 Stock.
(g) During a period of five years commencing with the date hereof, the Company will furnish 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.
(h) The Company agrees to pay all costs and expenses incident to the performance of its obligations under this Agreement, including all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the furnishing to the Underwriters of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 6 to be so furnished, (iii) the printing of this Agreement and related documents delivered to the Underwriters, (iv) the preparation, printing and filing of all supplements and amendments to the Prospectus referred to in paragraph (d) of this Section 6, (v) the furnishing to you and the Underwriters of the reports and information referred to in paragraph (g) of this Section 6 and (vi) the printing and issuance of stock certificates, including the transfer agent's fees.
(i) For The Company agrees to reimburse you, for the account of the several Underwriters, for blue sky fees and related disbursements (including reasonable 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 Stock under state securities or blue sky laws and for filing fees incident to the review of the offering by the NASD.
(j) The Company agrees that, without the prior written consent of Hambxxxxx & Xuisx XXX on behalf of the Underwriters, the Company will not, for a period of 180 90 days from following the date of the Prospectus, not toEffective Date, directly or indirectly, (1i) offer for sell, offer, contract to sell, make any short sale, pledge, sell any option or contract to purchase, purchase any option or contract to sell, pledge grant any option, right or warrant to purchase or otherwise transfer or dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant or any rights to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of acquire Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2ii) enter into any swap or other derivatives transaction agreement that transfers to anothertransfers, in whole or in part, any of the economic benefits consequences or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, in each case without . The foregoing sentence shall not apply to (i) the prior written consent of Xxxxxx Brothers Inc.; and Stock to cause each officer and director of the Company and each stockholder of the Company previously specified be sold to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, Underwriters pursuant to which each such person shall agree not to, directly or indirectlythis Agreement, (1ii) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any issued by the Company upon the exercise of options granted under the stock option plans of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause Company (1the "Option Plans") or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration exercise of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned options outstanding as of the date hereof, all as described in the Prospectus and (iii) options to purchase Common Stock granted under the Option Plans. For purposes of the final prospectusthis paragraph (k), and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions a sale, offer, or other disposition shall expire as be deemed to all include any sale to an institution which can, following such shares of sale, sell Common Stock;
(j) Prior Stock to the Effective Date, to apply for the inclusion of the Stock public in reliance on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;Rule 144A.
(k) Prior to filing with Until the Commission any reports on Form SR pursuant to Rule 463 termination of the Rules and Regulationsoffering of the Stock, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereonCompany will timely file all documents, and any amendments to deliver promptly previously filed documents, required to the Representatives a signed copy of each report on Form SR be filed by it with pursuant to Sections 13, 14 or 15(d) of the Commission;Exchange Act.
(l) To apply The Company is familiar with the net proceeds from the sale Investment Company Act of the Stock being sold by the Company 1940, as set forth amended, and has in the Prospectus; and
(m) To take past conducted its affairs, and will in the future conduct its affairs, in such steps as shall be necessary a manner to ensure that neither the Company nor any subsidiary shall become was not and will not be an "investment company" or a company "controlled" by an "investment company" within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations thereunder.
(m) Not later than the 45th day following the end of the Commission fiscal quarter first occurring after the first anniversary of the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Securities Act), the Company will make generally available an earnings statement in accordance with Section 11(a) of the Securities Act and Rule 158 thereunder.
(n) The Company covenants that it will not, any time prior to April 30, 1999 (i) invest more than 25% in book value of its liquid assets, as outstanding from time to time, in securities or instruments with a maturity greater than one year ("Long-term Securities") or (ii) enter into any margin loan or similar financing arrangement pursuant to which securities or instruments in which the Company has invested proceeds of the offering are pledged to secure indebtedness, other than with a commercial bank or insurance company. With respect to the Long-term Securities, such securities, during the period set forth above, shall be investment-grade (as such term is defined by Standard & Poor's), interest-bearing, denominated in U.S. dollars and have a maturity within ten years of the date of purchase by the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Ansoft Corp), Underwriting Agreement (Ansoft Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its commercially reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters Representatives a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsAgreement); , and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent may not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed met by the Company’s reporting requirements pursuant to the Exchange Act and the rules and regulations thereunder);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to file a take any action that would subject it to general consent to service of process or taxation in any jurisdictionjurisdiction in which it is not now so subject;
(i) For a period of 180 90 days from the date of the ProspectusProspectus (the “initial Lock-Up Period”), not to, directly or indirectly, (1) (A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Stock and shares issued (ia) the Stock, (ii) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans and employee stock purchase plans existing on the date hereof or hereof, (b) pursuant to currently outstanding options, warrants or rights and or (iiic) in connection with acquisitions where the acquirer of such shares of Common Stock agrees to be bound by the restrictions contained in this paragraph (i); provided, that any shares issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may pursuant to this clause (c) shall not be resold prior to the expiration exceed 10% of the 180-day period referenced aboveCompany’s total outstanding Common Stock), or (B) sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or subsequently adopted by the Board of Directors of the Company), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. and Xxxxxxx, Sachs & Co., on behalf of the Underwriters; provided, however, that if (a) during the last 17 days of the initial Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 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 each case the initial Lock-Up Period shall be automatically extended and the restrictions imposed by this Section 6(i) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless Xxxxxx Brothers Inc. and Xxxxxxx, Sachs & Co. waive, in writing, such extension; and to provide Xxxxxx Brothers Inc. and Xxxxxxx, Sachs & Co. with prior notice of any such announcement that gives rise to an extension of the initial Lock-up Period, and Xxxxxx Brothers Inc. and Xxxxxxx, Sachs & Co. hereby agree to keep such information confidential; and to provide each stockholder subject to the Lock-Up Period pursuant to the Lock-Up Agreement (defined herein) with notice within two business days of any such announcement that gives rise to an extension of the initial Lock-up Period; and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in form of Exhibit A hereto (the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one“Lock-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the ProspectusUp Agreement”); and
(mj) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder1940, as amended.
Appears in 2 contracts
Samples: Underwriting Agreement (Tempur Pedic International Inc), Underwriting Agreement (Tempur Pedic International Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in connection with the offering or sale of the Stock hereunder in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish deliver to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder (it being understand that filing on XXXXX shall be deemed to constitute delivery hereunder);
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably 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 reasonably necessary to complete the distribution of the Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1x) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2y) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1x) or (2y) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time Underwriters, subject in each case to the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stockexceptions set forth in Exhibit A;
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System Stock Market, Inc., and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company offering as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act;
(m) To comply, in all material respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 1940 and the rules and regulations 2002; and
(n) Not to waive any provisions of any “lock-up” or similar provision of any agreement previously entered into with any securityholder of the Commission thereunderCompany without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters, and to allow Xxxxxx Brothers Inc. to enforce any such provision on behalf of the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Tessera Technologies Inc), Underwriting Agreement (Tessera Technologies Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); Agreement) and (ii) each of the Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Stock at any time nine months or more after the Effective Time, upon request of the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representatives may reasonably request of an amended or supplemented prospectus complying with Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;.
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;.
(f) As soon as practicable after the Effective DateDate but in any event not later than 45 days after the end of the Company's fiscal quarter in which the first anniversary date of the Effective Date occurs, to make generally available to the Company's security holders and to deliver to the Representatives an earnings earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally security holders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided PROVIDED, that in connection therewith the Company shall not be required to take any action that would subject it to income taxation in such jurisdictions, qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;.
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock offered hereby and shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans the Stock Incentive Plan existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced abovehereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans the Stock Incentive Plan existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;.
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and.
(ml) To take such steps as shall be necessary to ensure that neither the Company Company, the Operating Partnership nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Arden Realty Inc), Underwriting Agreement (Arden Realty Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second (2nd) business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters Underwriters, a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus Prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and to Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters and obtain the consent of Underwriters, to allow the Representatives and their counsel a reasonable period of time to review and comment thereon prior to filing and not to file any such amendment or supplement to which the filingRepresentatives reasonably object;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders ’s stockholders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three (3) years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the ProspectusProspectus and except as described in the Prospectus with respect to the dissolution of the Predecessor, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representativesand Xxxxxxx, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockSachs & Co.;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange, Inc. and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder. The Company further acknowledges and agrees that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering of the Stock that differ from the views of the Underwriters’ respective investment bankers. The Company acknowledges that each of the Underwriters is a full-service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Syniverse Holdings Inc), Underwriting Agreement (Syniverse Technologies Inc)
Further Agreements of the Company. The Company agrees:: ---------------------------------
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best all commercially reasonable efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); Agreement) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which which, in the reasonable judgment of Xxxxxx Xxxxxx & Xxxxxxx, outside counsel for the Underwriters, the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which that will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the reasonable judgment of the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters a reasonable amount of time prior to such proposed filing and obtain the consent of will not file any such amendment or supplement to which the Representatives to or counsel for the filingUnderwriters shall reasonably object;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders securityholders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced abovehereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or the granting of options as disclosed in the Prospectus), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer officer, director and director holder of Common Stock of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any a period of 180 days from the date of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best all commercially reasonable efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(m) To take such steps as shall be reasonably necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Coinmach Laundry Corp), Underwriting Agreement (Coinmach Corp)
Further Agreements of the Company. (a) The Company agreescovenants and agrees with each Underwriter:
(ai) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's ’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 Agreement; to file any Issuer Free Writing Prospectus to the extent required to be required by filed under Rule 430A(a)(3) under 433 of the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Prospectus last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; and to pay any fees required by the Commission relating to the Shares within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r);
(bii) To furnish promptly to each of the Representatives and to counsel for the Underwriters at their request a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(ciii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (iA) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share unit earnings); and , (iiB) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus; and (D) other than documents available by XXXXX (as defined below) any document incorporated by reference in the Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto (or in lieu thereof, the notice referred to in Rule 173(a)) and if at such time any events shall have occurred as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended supplemented Pricing Disclosure Package or supplemented the Prospectus which that will correct such statement or omission or effect such compliance.;
(div) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), the Pricing Disclosure Package or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or the Exchange Act or requested by the Commission;
(ev) Prior During such period as the Underwriters are required to deliver a prospectus in connection with the offering contemplated hereby, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, any document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any amendment to an document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any prospectus pursuant to Rule 424 424(b) of the Rules and Regulations, Regulations to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be reasonably withheld and which shall be provided to the Company promptly after having been given notice of the proposed filing; provided that, the foregoing provision shall not apply if such filing is, in the judgment of counsel to the Company, required by law;
(fvi) Not to make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(vii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary 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 the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available via the Commission’s Electronic Data Gathering, Analysis and Retrieval (XXXXX) System, to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(gix) For a period of five two years following the Effective Date, to furnish furnish, or to make available via XXXXX, to the Representatives copies a copy of all materials furnished by the Company to its shareholders generally stockholders (excluding any periodic income tax reporting materials) and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hx) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 StockShares; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any jurisdictionsuch jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(ixi) For a period of 180 days from commencing on the date hereof and ending on the 90th day after the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) ), any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Shares and Common Stock issued pursuant to stock employee benefit plans, qualified option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction agreement that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8 or the replacement of any registration statement in existence on the date hereof upon its expiration), or (4) publicly disclose the intention to do any of the foregoing, except in each case without case, (A) in connection with the private issuance of Common Stock as full or partial consideration for an acquisition to recipients who agree in writing to a lock-up period that ends after the Lock-Up Period, or (B) with the prior written consent of Xxxxxx Brothers Inc.; Citigroup Global Markets Inc. on behalf of the Underwriters, and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. set forth on Schedule 2 hereto to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in form of Exhibit A hereto (the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one“Lock-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUp Agreements”);
(jxii) Prior To apply the net proceeds from the offering of the Shares as set forth in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that the Effective DateCompany shall not become an “investment company” as defined in the Investment Company Act of 1940, to as amended;
(xiv) To apply for the inclusion supplemental listing of the Stock Shares on the Nasdaq National Market System New York Stock Exchange (“NYSE”), and to use its reasonable best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;; and
(kxv) Prior To not directly or indirectly take any action designed to filing with or which constitutes or which might reasonably be expected to cause or result in, under the Commission Exchange Act or otherwise, stabilization or manipulation of the price of any reports on Form SR pursuant security of the Company to facilitate the sale or resale of the Shares.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 463 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations but excluding any Issuer Free Writing Prospectus, to furnish including any road show constituting a copy thereof to free writing prospectus under Rule 433 of the counsel for the Underwriters Rules and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it Regulations in connection with the Commission;
(l) To apply the net proceeds from the offer and sale of the Stock Shares) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, being sold defined as “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as set forth used in this Section 5(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
(c) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the Prospectuslight of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; and(ii) amend or supplement the Pricing Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(md) To take If, at any time when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such steps requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then 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 at such time not misleading, or if it shall be necessary to ensure that neither amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company nor promptly will (i) notify the Representatives of any subsidiary shall become such event, (ii) prepare and file with the Commission, subject to clause (a)(i) of this Section 5, an "investment company" within amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the meaning of such term under the Investment Company Act of 1940 and the rules and regulations Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Commission thereunderProspectus and (iv) supply any amendment or supplement to you in such quantities as you may reasonably request.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the any Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; , to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock ADSs for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of the each Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Managers such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus (not later than 10:00 a.m., New York City time, on the day following the execution and delivery of this Agreement or if not possible, as soon thereafter as possible) and any amended or supplemented ProspectusProspectus (not later than 10:00 a.m., New York City time, on the day following the date of such amendment or supplement or if not possible, as soon thereafter as possible); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock ADSs or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Managers and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Managers may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statements or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;.
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;.
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days, or if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company's fiscal year, 455 days), to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(g) For a period of five years following the Effective Date, to furnish to the Representatives Lead Managers copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock ADSs may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock ADSs for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Managers 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 StockADSs; provided that in connection therewith 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;.
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Capital Stock or securities convertible into or exchangeable for Common Capital Stock (other than (i) the Stock, (ii) shares of Common Capital Stock to be sold hereunder or under the U.S. Underwriting Agreement or issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Capital Stock or securities convertible into or exchangeable for Common Capital Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Capital Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Capital Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.International (Europe); and to cause each officer Xxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Holnest Investments Limited, Globecast Holdings Limited ("Globecast"), Altavista Global Holdings Limited ("Altavista"), Praxis Global Investments Limited ("Praxis") and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Efstathios Gourdomichalis to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or lettersletters (each, a "Lock-up Letter Agreement"), in form and substance satisfactory to counsel for the UnderwritersInternational Managers, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Capital Stock or securities convertible into or exchangeable for Common Capital Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Capital Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Capital Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.International (Europe); provided, for a period of 150 days after the date of the final prospectus at which time however, that the foregoing restrictions provisions shall not apply to one-third (A) transfers by way of testate or intestate succession or by operation of law, (B) transfers to members of the immediate family of such person or to a trust, partnership, limited liability company or other entity, all of the beneficial interests of which are held by such person, (C) transfers to charitable institutions for no consideration or (D) transfers by any of Globecast, Altavista or Praxis to the prior registered holders of such shares which transfers in the opinion of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior counsel to the Effective Date, Company reasonably acceptable to apply Xxxxxx Brothers International (Europe) are legally necessary in order for the inclusion Company to be in compliance with applicable Greek media laws; and provided, further, that in the case of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR transfers pursuant to Rule 463 of clauses (A), (B), (C) or (D), the Rules and Regulations, transferee shall have agreed to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold be bound by the Company as set forth restrictions in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunderthis paragraph.
Appears in 1 contract
Samples: International Underwriting Agreement (Antenna Tv Sa)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, provided that after the date which is one year following the completion of the issuance and delivery of shares to the Underwriters and the sale contemplated by the Prospectus, the Representatives shall bear the cost of such request, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their its request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any an appropriate amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives Underwriters, such amendment to be reasonably satisfactory to the filingRepresentatives;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof and other than those restricted stock units that the Company has notified the Representatives may be issued (but will not, unless upon death or retirement, vest) during the 90 day period contemplated hereby), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of Inc. Notwithstanding the foregoing, the Company and each stockholder may issue shares of Common Stock or securities convertible into or exchangeable for Common Stock without the prior consent of Xxxxxx Brothers Inc. pursuant to an agreement by the Company previously specified to purchase, acquire or effect the merger of another entity into the Company if in connection therewith each initial transferee of such Common Stock or securities convertible into Common Stock executes and delivers to the Company by an agreement stating that, without the prior written consent of Xxxxxx Brothers Inc. to furnish to the RepresentativesInc., prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not totransferee will not, directly or indirectly, (1) offer for sale, sell, pledge pledge, or otherwise dispose of (or enter into any transaction or device which that is designed to, or could reasonably be expected to, result in the disposition by any person at any time in the future of) any such shares of Common Stock or securities convertible into or exchangeable for Common Stock transferred to such person in connection with such purchase, acquisition or merger, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) Stock or (2) above is to be settled by delivery of securities convertible into Common Stock or other securitiesuntil April 27, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;2001.
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR its first periodic report pursuant to Section 13(a) or 15(d) of the Securities Act that includes the information required pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each such report on Form SR filed by it with the Commission;
(l) To apply For a period of two years following the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To date hereof, to take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.; and
Appears in 1 contract
Samples: Underwriting Agreement (Heidrick & Struggles International Inc)
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Stock and Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.Inc. on behalf of the Underwriters; and to cause each xxxxxholder and optionholder listed on Schedule 3 hereto, each officer and director of the Company and each stockholder Directed Share Participant that is an employee of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in the case of each Officer and Director of the Company for a period of 180 days from the date of the Prospectus and in the case of each Directed Share Participant that is an employee of the Company for a period of 90 days from the date of the Prospectus, in either case without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUnderwriters;
(j) Prior to the Effective Date, to apply for To axxxx xor the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete effect that listingquotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder; (m) In connection with the Directed Share Program, to ensure that the Directed Shares will be restricted to the extent required by the NASD or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement, and Lehman Brothers Inc. will notify the Company as to which Directed Shaxx Xxxticipants will need to be so restricted. At the request of Lehman Brothers Inc., the Company will direct the transfer agent to pxxxx xtop transfer restrictions upon such securities for such period of time; and
(n) To comply in all material respects with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); the Ratio of Earnings to Fixed Charges) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Notes or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriters and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Spanish Broadcasting System of Puerto Rico Inc /Pr/)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus and the Exchange Prospectus in a form approved by the Representatives (which approval shall not be unreasonably withheld) and to file such the Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, the Prospectus, or the Exchange Prospectus of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the Exchange Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the Exchange Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy copies of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus, the Exchange Prospectus and any amended amendments or supplemented Prospectussupplements thereto; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering offering, sale or sale exchange of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus or as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus and which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or the Exchange Prospectus any supplement to the Prospectus or the Exchange Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission of any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus, the Exchange Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld;
(f) As soon At such times as practicable after required to be filed with the Effective DateCommission, to make generally available to the Company's security holders and to deliver to the Representatives Representatives, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to will furnish upon reasonable request to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as cooperate with the Representatives may reasonably request to qualify in connection with the qualification of the Stock and the Common Stock issuable upon exchange of the Exchangeable Shares for offering and sale under the securities laws of such United States jurisdictions as the Representatives 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 Stock; 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 or taxation in any such jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be reasonably expected to, result in the disposition disposition, by any person at any time in the future during such 180 day period, of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) securities to be issued under the Stock Purchase Agreement, the Exchangeable Shares and shares of Common Stock issued pursuant to the Exchangeable Shares, employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc. and RBC Dominion Securities Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in the form attached as exhibit __ hereto;
(j) Prior to each Delivery Date, the Company and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree SMTC Canada will not to, issue any press release or other communication directly or indirectlyindirectly or hold any press conference with respect to the Company, (1) offer for saleits condition, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in each case the ordinary course of business and consistent with the past practices of the Company), without the prior written consent of Xxxxxx Brothers Inc. and RBC Dominion Securities Inc., for a period of 150 days after which consent shall not be unreasonably withheld, unless in the date judgement of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common StockCompany and its counsel, and upon after notification to the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectusRepresentatives, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stockpress release or communication is required by law;
(jk) Prior to the Effective Date, to apply for the inclusion of the Stock and the Common Stock issuable upon exchange of the Exchangeable Shares on the Nasdaq NASDAQ National Market System and to use its reasonable best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(kl) Prior to filing To file with the Commission any reports on Form SR pursuant to such information as may be required by Rule 463 of under the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionSecurities Act;
(lm) To apply the net proceeds from the sale of the Stock being sold by the Company as in substantially the manner set forth in the Prospectus; and
(mn) To take such steps as shall be reasonably necessary to ensure that neither keep the Company nor any subsidiary Registration Statement continuously effective for so long as shall become an "investment company" within be necessary to permit the meaning of such term under the Investment Company Act of 1940 and the rules and regulations exchange of the Commission thereunderExchangeable Shares into Common Stock (which period shall terminate no later than the date on which all of the Exchangeable Shares have been so exchanged).
Appears in 1 contract
Samples: Underwriting Agreement (SMTC Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters Underwriters, a signed or conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 and without charge to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement Agreement, the Indenture and any the computation of per share earningsthe ratio of earnings to fixed charges); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Notes or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made made, when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their reasonable request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and Xxxxxxx Xxxxxxx & Xxxxxxxx, as counsel for the Underwriters Underwriters, and obtain the consent of the Representatives to the filingfiling (such consent not to be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period so long as any of five years following the Effective DateNotes are outstanding, to furnish and deliver without charge to the Representatives and the Trustee, copies of all materials furnished or otherwise made available by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal any national securities exchange upon which the Common Stock may be listed pursuant to the requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder (such materials, reports and financial statements collectively, the "Reports"), provided, however, that the obligations of the Company shall be considered satisfied for the purposes of this Section 5(g) so long as the Company shall file such Reports electronically with the Commission pursuant to Regulation S-T under the Rules and Regulations, and such Reports shall be publicly available;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Notes for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably 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 StockNotes; provided that that, in connection therewith 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge grant any option to purchase, issue or otherwise transfer or dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares debt securities of, or guaranteed by, any of Common Stock the Company or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior its subsidiaries which are substantially similar to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock Notes (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof Notes), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case case, without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock Notes being sold by the Company as set forth in the Prospectus; and;
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of (as such term is used under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder); and
(l) To not take, directly or indirectly, any action which is designed to stabilize or manipulate, or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation, of the price of any security of the Company in connection with the offering of the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Humana Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsAgreement); , and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Stock, or any other securities relating thereto thereto, and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or the Rules and Regulations or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent may not be unreasonably withheld, delayed or conditioned;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed met by the Company's reporting requirements pursuant to the Exchange Act and the Rules and Regulations);
(g) For a period of five two years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that the Company need not provide any information which is made available on the SEC's EDGAR database;
(h) Promptly from time to time xxxx to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) (A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or (B) sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options or restricted stock units pursuant to stock option and purchase plans or other employee incentive compensation plans existing on the date hereof or subsequently adopted by the Board of Directors of the Company), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, other than, in each case, the issuance of shares or options in acquisitions in which the acquiror of such shares or options agrees to the foregoing restrictions, and in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.Inc. on behalf of the Underwriters; and to xxx xx cause each director and executive officer and director of the Company and each stockholder listed under the "Management" section of the Company previously specified to the Company by Xxxxxx Brothers Inc. Prospectus to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Exhibit A hereto; and
(j) Prior to the Effective Date, to apply The Stock has been approved for the inclusion of the Stock listing on the Nasdaq NASDAQ National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunderMarket.
Appears in 1 contract
Samples: Underwriting Agreement (Hayes Lemmerz International Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Managers such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.the
Appears in 1 contract
Samples: International Underwriting Agreement (Maginet Corp)
Further Agreements of the Company. The Company agreesagrees with the several Underwriters:
(a) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission by 10:00 P.M., New York time, on the date hereof, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Rules and Regulations; to prepare the Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C of the Rules and Regulations and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's close of business on the second business (2nd) day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under 430A of the Securities ActRules and Regulations; to make no further amendment notify the Representative promptly of the Company’s intention to file or prepare any supplement or amendment to the any Registration Statement or to the Prospectus except as permitted hereinand to make no amendment or supplement to the Registration Statement, the General Disclosure Package or to the Prospectus to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the General Disclosure Package or the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Representative with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rules 433(d) or 163(b)(2) of the Rules and Regulations, as the case may be; 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 the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required in connection with the offering or sale of the Stock; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the General Disclosure Package or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification, to use and promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listingobtain the withdrawal of such order.
(b) The Company represents and agrees that, subject only unless it obtains the prior written consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representative, it has not made and will not, other than the Final Term Sheet (defined below), if any, prepared and filed pursuant to official notice of issuanceSection 4(c) hereof, prior make any offer relating to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Stock that would constitute a “free writing prospectus” as defined in Rule 463 405 of the Rules and RegulationsRegulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative hereto shall be deemed to furnish a copy thereof have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the counsel for the Underwriters and receive and consider its comments thereon, and requirements relating to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it timely filing with the Commission;
(l, legending and record keeping and will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) To apply the net proceeds from the sale of the Stock being sold Rules and Regulations a free writing prospectus prepared by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning or on behalf of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.Underwriter that such Underwriter otherwise would not have been required to file
Appears in 1 contract
Samples: Underwriting Agreement (Cerus Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including consents and exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Preliminary Prospectus or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus or the Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Preliminary Prospectus or the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such amendment of supplement with the Commission and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Preliminary Prospectus or the Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Representatives or Counsel to the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent (which may be oral) of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to To make generally available to the Company's its security holders and to deliver to as soon as practicable but no later than 60 days after the Representatives close of the period covered thereby an earnings statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules and Regulations, covering a twelve-month period commencing after the “effective date” (including, at the option as defined in said Rule 158) of the Company, Rule 158)Registration Statement;
(g) For a period of five years following the Effective Date, to To furnish to each Underwriter, from time to time during the Representatives period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of all materials furnished the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of Securities Act or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation the respective applicable rules and regulations of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities securities, real estate syndication or Blue Sky laws of such jurisdictions as the Representatives 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 Stock; 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 jurisdictionShares;
(i) For a period of 180 90 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1i) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exercisable or exchangeable for Common Stock Shares (other than (i) the Stock, (ii) shares of Shares and Common Stock Shares issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Units that are not redeemable for Common Stock issued as consideration for Shares during the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180Lock-day period referenced aboveUp Period), or sell or grant options, rights or warrants with respect to any shares of Common Stock Shares or securities convertible into or exercisable or exchangeable for Common Stock Shares (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on as of the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockShares, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock Shares or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters, (iii) file or cause to be filed a registration statement with respect to the registration of any Common Shares or securities convertible, exercisable or exchangeable into Common Shares or any other securities of the Company (other than a registration statement on Form S-8 or a registration statement on Form S-3 with respect to a dividend reinvestment plan) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Xxxxxx Brothers Inc., on behalf of the Underwriters; and to cause each officer and director trustee of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the UnderwritersUnderwriters (each, pursuant to which each such person shall agree not toa “lock-up letter agreement”), directly or indirectlysubstantially in the form of Exhibit A hereto; notwithstanding the foregoing paragraph, if (1) offer for saleduring the last 17 days of the Lock-Up Period, sell, pledge the Company issues an earnings release or otherwise dispose of (material news or enter into any transaction or device which is designed to, or could be expected to, result in a material event relating to the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock Company occurs or (2) enter into any swap or other derivatives transaction that transfers prior to another, in whole or in part, any the expiration of the economic benefits 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 in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or risks the announcement of ownership the material news or the occurrence of such shares of Common Stockthe material event, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of unless Xxxxxx Brothers Inc., for a period of 150 days after the date on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of Underwriters, waives such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stockextension in writing;
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock Shares on the Nasdaq National Market System NYSE, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior During the period when the Prospectus is required to filing be delivered under the Securities Act or the Exchange Act, the Company will (1) comply with all provisions of the Securities Act and the Rules and Regulations and (2) file all documents required to be filed with the Commission any reports on Form SR pursuant to Rule 463 the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionCommission thereunder;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither of the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(m) The Company will use its best efforts to meet the requirements to qualify, commencing with its taxable year ended December 31, 2004, as a REIT under the Code, and will make the necessary election with the IRS; and
(n) Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus, neither the Company nor the Operating Partnership will (1) prior to the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus, take, directly or indirectly, any action designated to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (2) until the Delivery Date, sell, bid for or purchase the Shares or pay any person any compensation for soliciting purchases of the Shares; or (3) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such amended or supplemental prospectus and to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries the Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the U.S. Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary the Subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. (a) The Company agreescovenants and agrees with each Underwriter:
(ai) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's ’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 Agreement; to file any Issuer Free Writing Prospectus to the extent required to be required by filed under Rule 430A(a)(3) under 433 of the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Prospectus last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; and to pay any fees required by the Commission relating to the Shares within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r);
(bii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(ciii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (iA) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share unit earnings); and , (iiB) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus; and (D) other than documents available by XXXXX (as defined below) any document incorporated by reference in the Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto (or in lieu thereof, the notice referred to in Rule 173(a)) and if at such time any events shall have occurred as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended supplemented Pricing Disclosure Package or supplemented the Prospectus which that will correct such statement or omission or effect such compliance.;
(div) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), the Pricing Disclosure Package or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or the Exchange Act or requested by the Commission;
(ev) Prior During such period as the Underwriters are required to deliver a prospectus in connection with the offering contemplated hereby, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, any document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any amendment to any document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any prospectus pursuant to Rule 424 424(b) of the Rules and Regulations, Regulations to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be reasonably withheld and which shall be provided to the Company promptly after having been given notice of the proposed filing; provided that, the foregoing provision shall not apply if such filing is, in the judgment of counsel to the Company, required by law;
(fvi) Not to make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(vii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary 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 the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available via the Commission’s Electronic Data Gathering, Analysis and Retrieval (XXXXX) System, to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(gix) For a period of five two years following the Effective Date, to furnish furnish, or to make available via XXXXX, to the Representatives copies a copy of all materials furnished by the Company to its shareholders generally stockholders (excluding any periodic income tax reporting materials) and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hx) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 StockShares; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any jurisdictionsuch jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(ixi) For a period of 180 days from commencing on the date hereof and ending on the 60th day after the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) ), any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Shares and Common Stock issued pursuant to stock employee benefit plans, qualified option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction agreement that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8 or the replacement of any registration statement in existence on the date hereof upon its expiration), or (4) publicly disclose the intention to do any of the foregoing, except in each case without case, (A) in connection with the private issuance of Common Stock as full or partial consideration for an acquisition to recipients who agree in writing to a lock-up period that ends after the Lock-Up Period, or (B) with the prior written consent of Xxxxxx Brothers Inc.; Citigroup Global Markets Inc. on behalf of the Underwriters, and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. set forth on Schedule 2 hereto to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in form of Exhibit A hereto (the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one“Lock-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUp Agreements”);
(jxii) Prior To apply the net proceeds from the offering of the Shares as set forth in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that the Effective DateCompany shall not become an “investment company” as defined in the Investment Company Act of 1940, to as amended;
(xiv) To apply for the inclusion supplemental listing of the Stock Shares on the Nasdaq National Market System New York Stock Exchange (“NYSE”), and to use its reasonable best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;; and
(kxv) Prior To not directly or indirectly take any action designed to filing with or which constitutes or which might reasonably be expected to cause or result in, under the Commission Exchange Act or otherwise, stabilization or manipulation of the price of any reports on Form SR pursuant security of the Company to facilitate the sale or resale of the Shares.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 463 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations but excluding any Issuer Free Writing Prospectus, to furnish including any road show constituting a copy thereof to free writing prospectus under Rule 433 of the counsel for the Underwriters Rules and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it Regulations in connection with the Commission;
(l) To apply the net proceeds from the offer and sale of the Stock Shares) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, being sold defined as “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as set forth used in this Section 5(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
(c) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the Prospectuslight of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; and(ii) amend or supplement the Pricing Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(md) To take If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act (including in circumstances where such steps requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then 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 at such time not misleading, or if it shall be necessary to ensure that neither amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company nor promptly will (i) notify the Representatives of any subsidiary shall become such event, (ii) prepare and file with the Commission, subject to clause (a)(i) of this Section 5, an "investment company" within amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the meaning of such term under the Investment Company Act of 1940 and the rules and regulations Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Commission thereunderProspectus and (iv) supply any amendment or supplement to you in such quantities as you may reasonably request.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in no event later than 15 months after the Effective Date), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (iA) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or hereof, (B) pursuant to currently outstanding options, warrants or rights and rights, or (iiiC) shares of Common Stock issued as consideration for in the acquisition of one businesses whether by merger, consolidation, purchase or more businesses otherwise; provided that any such Common Stock issued shares transferred as consideration will be subject to the same restrictions on transfer as set forth in this Section 5(i) for the acquisition remainder of one or more businesses may the 180 day lock-up period, unless waived in writing by Xxxxxx Brothers Inc., which waiver shall not be resold prior to the expiration of the 180-day period referenced aboveunreasonably withheld), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer officer, director and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.the
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Representative with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Representative and to counsel for the Underwriters a signed conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Representative such number of the following documents as the Representatives Representative shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including consents and exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any Incorporated Document (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Preliminary Prospectus, the Prospectus or the Time of Sale Information as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus or the Prospectus or the Time of Sale Information is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Preliminary Prospectus or the Prospectus or the Time of Sale Information in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Representative and, upon their request, to file such amendment or supplement with the Commission and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Representative may from time to time reasonably request of an amended or supplemented Preliminary Prospectus or the Prospectus or the Time of Sale Information which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Representative or counsel to the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus or any Prospectus Issuer Free Writing Prospectus, any Incorporated Document pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters and obtain the consent (which may be oral) of the Representatives Representative to the filing;
(f) As soon as practicable Not to make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior consent of the Representative;
(g) To retain in accordance with the Securities Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act; and if at any time after the Effective Datedate hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary 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 the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(h) To make generally available to the Company's its security holders and to deliver to as soon as practicable but no later than 60 days after the Representatives close of the period covered thereby an earnings statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules and Regulations, covering a twelve-month period commencing after the “effective date” (including, at the option as defined in said Rule 158) of the Company, Rule 158)Registration Statement;
(gi) For a period of five years following the Effective Date, to To furnish to each Underwriter, from time to time during the Representatives period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of all materials furnished the Prospectus and the Time of Sale Information (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of Securities Act or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation the respective applicable rules and regulations of the Commission thereunder;
(hj) To consent to the use of the Prospectus and the Time of Sale Information (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 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 Securities Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Securities Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Securities Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof;
(k) Promptly from time to time to take such action as the Representatives Representative may reasonably request to qualify the Stock Shares for offering and sale under the securities securities, real estate syndication or Blue Sky laws of such jurisdictions as the Representatives Representative 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 StockShares;
(l) During the period of five years hereafter, upon request of the Underwriters, to furnish to the Underwriters, (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (iii) from time to time, such other information concerning the Company as the Underwriters may reasonably request; provided that in connection therewith any document that is available on the Company SEC’s XXXXX system shall not be required deemed furnished to qualify as a foreign corporation or to file a general consent to service of process in any jurisdictionthe Underwriters;
(im) For a period of 180 45 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1i) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares preferred securities of Common Stock the Company or securities convertible into or exchangeable for Common Stock preferred securities of the Company (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveShares), or sell or grant options, rights or warrants with respect to any shares preferred securities of Common Stock the Company or securities convertible into or exercisable or exchangeable for Common Stock preferred securities of the Company (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares preferred securities of Common Stockthe Company, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock preferred securities of the Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any preferred securities of the Company or securities convertible, exercisable or exchangeable into preferred securities of the Company or any other securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director the Representative on behalf of the Company and each stockholder Underwriters; notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company previously specified issues an earnings release or announces material news or a material event relating to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock occurs or (2) enter into any swap or other derivatives transaction that transfers prior to another, in whole or in part, any the expiration of the economic benefits or risks Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of ownership the Lock-Up Period, then the restrictions imposed above shall continue to apply until the expiration of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a 18-day period of 150 days after beginning on the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date issuance of the final prospectus earnings release or the foregoing restrictions shall not apply to an additional one-third announcement of the shares of Common Stock so owned as material news or the occurrence of the date material event, unless the Representative, on behalf of the final prospectusUnderwriters, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all waives such shares of Common Stockextension in writing;
(jn) Prior to To apply the Effective Datenet proceeds from the sale of the Shares being sold by the Company in accordance with the description set forth in the Prospectus and the Time of Sale Information under the caption “Use of Proceeds;”
(o) To (i) register the Shares under Section 12(b) of the Exchange Act, to and (ii) apply for the inclusion listing of the Stock Shares on the Nasdaq National Market System NYSE and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(kp) Prior To file the Articles Supplementary, duly authorized and executed by the Company, with the MSDAT, and use its best efforts to filing cause the Articles Supplementary to be accepted by the MSDAT prior to the First Delivery Date.
(q) During the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, the Company will (1) comply with all provisions of the Securities Act and the Rules and Regulations and (2) file all documents required to be filed with the Commission any reports on Form SR pursuant to Rule 463 the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionCommission thereunder;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mr) To take such steps as shall be necessary to ensure that neither of the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(s) The Company will use its best efforts to continue to be organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for each of its taxable years; and
(t) Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus and the Time of Sale Information, neither the Company nor the Operating Partnership will (1) prior to the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus, take, directly or indirectly, any action designated to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (2) until the Delivery Date, sell, bid for or purchase the Shares or pay any person any compensation for soliciting purchases of the Shares; or (3) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filingfiling (which consent may not be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period Until completion of five years following the Effective Datedistribution contemplated hereby, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon exercise of any option or warrant) or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iiirights) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters (it being understood that (x) gifts and other private transfers of Common Stock solely for the purpose of estate planning and (y) transfers of Common Stock in private transactions shall each be permitted; provided, that in the case of any transfer pursuant to the foregoing clauses (x) -------- and (y), the transferee agrees to be bound by all of the foregoing terms and provisions of this Section 6(i)); and to cause each officer officer, director and director shareholder (other than those named on Schedule 2 hereto) of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockExhibit A hereto;
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 and 1940, as amended; and
(m) Not to take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the rules and regulations stabilization or manipulation of the Commission thereunderprice of the shares of Common Stock (including the Stock) to facilitate the sale or resale of such shares.
Appears in 1 contract
Further Agreements of the Company. The Company agreesagrees with the several Underwriters that:
(a) To The Company will prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and file such Rule 462(b) Registration Statement with the Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the Registration Statement Statements or to the Prospectus except as permitted hereinto which the Representatives shall reasonably object by notice to the Company after a reasonable period to review, other than any such amendment or supplement which, in the opinion of legal counsel to the Company, is required by applicable laws or regulations to be filed; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required If at any time prior to the expiration of nine months after the Effective Time in connection with the offering or sale effective date of the Initial Registration Statement when a prospectus relating to the Stock or is required to be delivered any other securities relating thereto and if at such time any events shall have occurred event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary time to amend or supplement the Prospectus in order to comply with the Securities Act, to the Company will promptly notify the Representatives and, thereof and upon their request, to request will prepare and an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of such amended or supplemented Prospectus; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine months or more after the effective date of the Initial Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus which will correct such statement or omission or effect such complianceas may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of each of the Registration Statements as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) To file deliver promptly to XX Xxxxx Securities Corporation in New York City such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission any and each amendment to the Registration Statement, including any filing required under Rule 462(bthereto (in each case excluding exhibits), or (ii) each Preliminary Prospectus, and (iii) the Prospectus or any supplement to the Prospectus that may(not later than 9:00 A.M., in the judgment New York time, of the second business day following the execution and delivery of this Agreement, or such later date agreed to by the Company or and the Representatives) and any amended or supplemented Prospectus (not later than 9:00 A.M., be required New York time, on the second business day following the date of such amendment or supplement or such later date agreed to by the Company and XX Xxxxx Securities Act or requested by the Commission;Corporation).
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the Company's security holders and to deliver to effective date of the Representatives Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(gf) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the The Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly will promptly take from time to time to take such action actions as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request designate in writing to the Company and to comply with continue such laws qualifications in effect for so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution of the Stock; provided that in connection therewith the Company and its subsidiaries shall not be required obligated to qualify as a foreign corporation corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;.
(g) During the period of five years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) For a period as soon as they are available, copies of 180 days from all reports or other communications furnished to stockholders and (ii) as soon as they are available, copies of any reports and financial statements furnished or filed with the date of Commission pursuant to the Prospectus, Exchange Act or any national securities exchange or automatic quotation system on which the Stock is listed or quoted.
(h) The Company will not to, directly or indirectly, (1) offer for saleindirectly offer, sell, pledge assign, transfer, pledge, contract to sell, or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (for a period of 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx other than (i) the StockCompany's sale of the Stock hereunder, (ii) the issuance of options to purchase shares of Common Stock issued in the ordinary course of business and pursuant to stock option the Company's 2003 Equity Incentive Plan, 2003 Employee Stock Purchase Plan and purchase 2003 Foreign Subsidiary Employee Stock Purchase Plan (collectively, the "Plans") (not to exceed the shares available for issuance of grant under such plans or other employee compensation plans existing on as set forth in the date hereof or pursuant to currently outstanding options, warrants or rights Prospectus) and (iiiii) the issuance of shares of Common Stock issued as consideration for the acquisition upon exercise of one or more businesses provided that such options to purchase shares of Common Stock outstanding as of the date of this Agreement or issued as consideration for in the acquisition ordinary course of one or more businesses may not be resold business and pursuant to the Plans. The Company will cause all of its officers, directors and security holders (other than those security holders listed on Schedule C hereto) to furnish to the Representatives, prior to the expiration First Closing Date, a letter, substantially in the form of the 180-day period referenced above)Exhibit I hereto, pursuant to which each such person shall agree not to directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or sell or grant options, rights or warrants with respect to otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the grant for a period of options pursuant to stock option and purchase plans or other employee compensation plans existing on 90 days from the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; XX Xxxxx.
(i) The Company will supply the Representatives with copies of all correspondence to and from, and all documents issued to cause each officer and director by, the Commission in connection with the registration of the Company and Stock under the Securities Act.
(j) Prior to each stockholder of the Company previously specified to Closing Dates, the Company by Xxxxxx Brothers Inc. to will furnish to the Representatives, prior as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the First Delivery Dateperiods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, a letter the Company will not issue any press release or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, other communication directly or indirectlyindirectly or hold any press conference with respect to the Company, (1) offer for saleits condition, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in each case the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified), without the prior written consent of Xxxxxx Brothers Inc.the Representatives, for a period of 150 days after unless in the date judgment of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common StockCompany and its counsel, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior notification to the Effective DateRepresentatives, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed such press release or communication is required by it with the Commission;law.
(l) To In connection with the offering of the Stock, until XX Xxxxx shall have notified the Company of the completion of the resale of the Stock, the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Stock, or attempt to induce any person to purchase any Stock; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to the Option Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 4(I)(b).
(n) The Company will apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term Prospectus under the Investment Company Act heading "Use of 1940 and the rules and regulations of the Commission thereunderProceeds".
Appears in 1 contract
Samples: Underwriting Agreement (Digital Theater Systems Inc)
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted hereinin compliance with the terms hereof; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain promptly its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters and to each of Cxxxxxxx Chance US LLP and Kxxx Xxxxxxx LLP, as counsel to the several Selling Stockholders, a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their requestrequest (but subject to Section 6(d) below), to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the Effective Date (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For At the request of the Representative, for a period of five three years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports stockholders and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder, other than materials that are promptly made available through the Commission’s Electronic Data Gathering Analysis and Retrieval System (“EXXXX”) or with respect to which the Company has requested confidential treatment from the Commission;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation or incentive plans existing on the date hereof or described in the Prospectus as existing as of the First Delivery Date, (iii) shares issued pursuant to currently outstanding options, warrants or rights and rights, or (iiiiv) shares of Common Stock issued as consideration or securities convertible into or exchangeable for the acquisition shares of one or more businesses provided that such Common Stock issued as consideration by the Company in exchange (either solely or together with other consideration) for assets or a majority and controlling portion of the equity of another person in connection with a merger or acquisition (each, a "Strategic Transaction”), provided that (A) such securities are not issued in a transaction pursuant to binding agreements or commitments that are entered into, or publicly announced, within 45 days of one or more businesses may not be resold the date of the Prospectus, (B) each recipient of such securities shall have furnished to the Representatives, prior to any such issuance, a Lock-Up Letter (as defined below) and (C) the expiration aggregate number of shares of Common Stock issuable by the Company in all such issuances shall not exceed (x) three percent (3%) of the 180-day period referenced aboveshares of Common Stock issued and outstanding immediately following the First Delivery Date hereunder in all such Strategic Transactions pursuant to binding agreements or commitments that are entered into, or publicly announced, no less than 45 days after the date of the Prospectus and (y) five percent (5%) of the shares of Common Stock issued and outstanding immediately following the First Delivery Date hereunder in all such Strategic Transactions pursuant to the foregoing clause (x) and any other Strategic Transactions pursuant to binding agreements or commitments that are entered into, or publicly announced, no less than 60 days after the date of the Prospectus (collectively the “Strategic Transaction Restrictions”)), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the grant issuance of options options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation or incentive plans existing on the date hereof or described in the Prospectus as existing as of the First Delivery Date, or (ii) the issuance of options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock in connection with a Strategic Transaction, subject to the Strategic Transaction Restrictions), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock (except as otherwise permitted in the foregoing clause (1)), whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Lxxxxx Brothers Inc. on behalf of the Underwriters; provided, however, notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 17-day period beginning on the last day of the Lock-Up Period, then the Lock-Up Period shall continue to apply until the expiration of the 17-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; and to cause (i) each executive officer and director of the Company, (ii) each Selling Stockholder and (iii) each stockholder of the Company holding shares that have not been registered under the Securities Act, but including shares registered under Form S-8 thereunder, representing (including securities convertible into or exchangeable for shares of Common Stock within 90 days of the date of the Prospectus) at least one percent (1%) of the shares of Common Stock outstanding immediately prior to the First Delivery Date to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (each, a “Lock-Up Letter”), pursuant to which each such person shall agree not to, directly or indirectly, except as permitted by the terms of such Lock-Up Letter, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Stock) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days, subject to a potential extension for up to 17 days, from the date of the Prospectus, without the prior written consent of Xxxxxx Lxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete that listingeffect such inclusion, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the ProspectusProspectus in all material respects; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last delivery date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly 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 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 Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase or equity plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case case, without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, Underwriters pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in the immediately preceding clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case case, for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock for quotation on the Nasdaq National Market System and to use its best efforts to complete that listingeffect such quotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (International Telecommunication Data Systems Inc)
Further Agreements of the Company. The Company agrees:: ---------------------------------
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and Agreement) (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Act; not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such amended or supplemented prospectus and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, but in any event not later than 18 months after the Effective Date of the Registration Statement, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or file a registration statement with respect to any of the foregoing (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights rights; provided, that each recipient of any such shares shall execute and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior deliver a Lock-Up Agreement to the expiration of the 180-day period referenced aboveCompany and Xxxxxx Brothers Inc.), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listingthe listing of the Stock on NASDAQ, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(l) to use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner set forth in the Prospectus under the caption “Use of Proceeds”; and
(m) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Securities Act by 10:00 p.m. on the date hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Telik Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second (2nd) business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the 11 Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five (5) years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 one hundred eighty (180) days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;derivatives
(j) Prior to the Effective Date, to To apply for the inclusion listing for quotation of the Stock on the National Association of Securities Dealers Automated Quotations National Market (the "Nasdaq National Market System Market"), and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission promulgated thereunder; and
(m) In connection with the Directed Share Program, to ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement, and Lehmxx Xxxthers Inc. will notify the Company as to which Participants will need to be so restricted. At the request of Lehmxx Xxxthers Inc., the Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
Appears in 1 contract
Further Agreements of the Company. The Company agreesagrees with the several Underwriters that:
(a) To The Company will prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and file the Rule 462(b) Registration Statement with the Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and to file such the Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the either Registration Statement or to the Prospectus except as permitted hereinto which the Representatives shall reasonably object by notice to the Company after a reasonable period (but in any event within 48 hours) to review, unless, after such period, the Company and its counsel determine, in their reasonable judgment, such amendment or supplement is required by law; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;the withdrawal of such order promptly.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementIf, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the Effective Time in connection with the offering or sale effective date of the Initial Registration Statement when a prospectus relating to the Stock or is required to be delivered, any other securities relating thereto and if at such time any events shall have occurred event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary time to amend or supplement the Prospectus in order to comply with the Securities Act, to the Company will promptly notify the Representatives and, thereof and upon their request, to request will prepare and an amended or supplemented Prospectus that will correct such statement or omission or otherwise effect such compliance. The Company will furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of such amended or supplemented Prospectus; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine months or more after the effective date of the Initial Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus which as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company has furnished, or will correct such statement or omission or effect such compliancefurnish promptly upon any filing after the delivery of this Agreement, to each of the Representatives and to counsel for the Underwriters a conformed copy of each of the Registration Statements as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) To file The Company will deliver promptly to the Representatives in New York, New York such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission any and each amendment to the Registration Statement, including any filing required under Rule 462(bthereto (in each case excluding exhibits), or ; (ii) each Preliminary Prospectus; (iii) the Prospectus or any supplement to the Prospectus that may(not later than 10:00 A.M., in the judgment New York time, of the Company business day following the execution and delivery of this Agreement) and (iv) any amended or supplemented Prospectus (not later than 10:00 A.M., New York time, on the Representatives, be required by business day following the Securities Act date of such amendment or requested by the Commission;supplement).
(e) Prior The Company will make generally available to filing with its stockholders as soon as practicable, but in any event not later than 18 months after the Commission any amendment to effective date of the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to (as defined in Rule 424 158(c) of the Rules and Regulations), to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(gf) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the The Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly will promptly take from time to time to take such action actions as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request designate and to comply with continue such laws qualifications in effect for so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution of the Stock; provided that in connection therewith the Company and the Subsidiaries shall not be required obligated to qualify as a foreign corporation corporations in any jurisdiction in which they are not so qualified or to file a general consent consents to service of process in any jurisdiction;jurisdictions.
(g) To the extent that any such reports, financial statements or other communications are not available through the Commission's Electronic Data Gathering and Retrieval System ("EDGAR") or any system succeeding or replacing EDGAR, during the xxxxod of five years from the date hereof, the Xxxpany will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) For as soon as they are available, copies of all reports or other communications furnished to stockholders and (ii) as soon as they are available, copies of any reports and financial statements furnished or filed with the Commission pursuant to the Exchange Act or any national securities exchange or automatic quotation system on which the Common Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of 180 days from the date of the ProspectusProspectus without the prior written consent of SG Cowen, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose other than the sale of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in Stock hereunder and the future of) any isxxxxxx xf shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and plans, employee stock purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants warrants, convertible preferred stock or rights convertible indebtedness.
(i) The Company will supply the Representatives with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(iiij) shares Prior to each of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for Closing Dates the acquisition of one or more businesses may not be resold prior Company will furnish to the expiration Representatives, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the 180-day period referenced above)Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or sell other communication directly or grant options, rights indirectly or warrants hold any press conference with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof )Company, or (2) enter into any swap or other derivatives transaction that transfers to anotherits condition, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in each case the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified), without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director the Representatives, unless in the judgment of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish its counsel, and after notification to the Representatives, prior to the First Delivery Date, a letter such press release or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which communication is designed to, or could be expected to, result in the disposition required by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;law.
(l) To In connection with the offering of the Stock, until SG Cowen shall have notified the Company of the completion of txx xxxxxe of the Stock, the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, (i) bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Common Stock, (ii) attempt to induce any person to purchase any Common Stock, or (iii) make bids for or purchase Common Stock for the purpose of creating actual, or apparent, active trading in the Common Stock or of raising the price of the Common Stock.
(m) The Company will apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term Prospectus under the Investment Company Act heading "Use of 1940 and the rules and regulations of the Commission thereunderProceeds."
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); Agreement) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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 jurisdictionjurisdiction in which it is not otherwise subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (11)(A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or (B) sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement with respect to shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Xxxxxx Lxxxxx Brothers Inc.Inc. on behalf of the Underwriters; provided, however, that if (a) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this Section 7(i) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; and to cause each officer officer, director and director each Stockholder identified on Schedule 5 hereto of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for of Exhibit A hereto the Underwriters“Lock-Up Agreement”, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge pledge, or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of any option or warrant) or securities convertible into or exchangeable for Common Stock (other than the Shares in the Offering) or announce any intention to do any of the foregoing, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days commencing on the date hereof and ending on the 180th day after the date of the final prospectus at which time relating to the foregoing restrictions shall not apply Offering (such 180-day period, the “Lock-Up Period”). Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to one-third of such shares of Common Stock, and upon the Company occurs or (2) prior to the expiration of 180 days after the date Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the final prospectus Lock-Up Period, then the foregoing restrictions imposed by this Lock-Up Letter Agreement shall not continue to apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon until the expiration of 210 days after the date 18-day period beginning on the issuance of the final prospectus earnings release or the foregoing restrictions shall expire as to all announcement of the material news or the occurrence of the material event, unless Lxxxxx Brothers Inc. waives, in writing, such shares of Common Stockextension;
(j) Prior to the Effective Date, Date to apply for the inclusion listing of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 and 1940, as amended; and
(m) In connection with the Directed Share Program, to use its best efforts to ensure that the Directed Shares will be restricted to the extent required by the NASD or the rules and regulations of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the Commission thereundereffectiveness of the Registration Statement; provided that Lxxxxx Brothers Inc. will notify the Company as to which Directed Share Participants will need to be so restricted. At the request of Lxxxxx Brothers Inc., the Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 455 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.; and to cause each officer and director of the Company and each officer, direxxxx xnd stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the U.S. Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Xxxxxtive Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange, Inc. and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the U.S. Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably delayed or withheld;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least June 15, 2001), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Representatives, for a period of five two years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (iw) the Stock, (iix) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and rights, or (iiiy) shares of Common Stock or securities convertible into or exchangeable for Common Stock issued as consideration for the acquisition of one or more businesses in a private placement transaction (provided that such Common Stock issued as consideration for the acquisition of one or more businesses may shares shall not be publicly resold during the period of 90 days after the date of the Prospectus; provided, further, that the holder of shares issued in such a transaction shall furnish to the Representatives at or prior to the expiration time of such issuance a letter in the 180-day period referenced aboveform of Exhibit A hereto)) or substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation benefit plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each Selling Stockholder of the Company and each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Company, to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Exhibit A hereto.
(j) Prior to the Effective Date, to To apply for the inclusion of the Stock on in the Nasdaq National Market System System, and to use its best efforts to complete that listingprocess, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder; and
(m) During the period of 90 days from the date of the Prospectus, to obtain an executed letter in the form of Exhibit A hereto from each executive officer and director who has not previously executed such a letter.
Appears in 1 contract
Samples: Underwriting Agreement (Itxc Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus or the Sale Preliminary Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or the Sale Preliminary Prospectus or any amended Prospectus or Sale Preliminary Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the Sale Preliminary Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters Underwriters, upon request, a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all conformed consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and Sale Preliminary Prospectus; if the Sale Preliminary Prospectus is being used to solicit offers to purchase the Stock at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Sale Preliminary Prospectus in writing in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend to amend or supplement the Sale Preliminary Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Sale Preliminary Prospectus so that the statements in the Sale Preliminary Prospectus as so amended or supplemented will not, in the light of the circumstances when the Sale Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Sale Preliminary Prospectus, as amended or supplemented, will comply with applicable law; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and file such amendment or supplement to the Prospectus and to furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file as promptly as practicable with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), the Prospectus or the Sale Preliminary Prospectus or any supplement to the Prospectus or the Sale Preliminary Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or the Sale Preliminary Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders ’s stockholders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158158 of the Rules and Regulations);
(g) For a period of five years following the Effective Date, to furnish make available to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automatic quotation system upon which the Common Stock may be listed or quoted pursuant to requirements of or agreements with such exchange or automatic quotation system or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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 jurisdictionjurisdiction in which it is not otherwise subject;
(i) For a period of 180 90 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for saleoffer, sell, pledge pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) stock awards granted pursuant to the StockCompany’s equity incentive plans, which plans are described in the Prospectus, (ii) the issuance of shares of Common Stock upon exercise of stock awards granted pursuant to such equity incentive plans, (iii) the issuance of Common Stock in connection with any acquisition of another company of all or a portion of its stock or assets; provided that such shares of Common Stock, when taken together with all such other shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and this clause (iii) shares of Common Stock issued as consideration for the acquisition of one ), do not, or more businesses provided that such Common Stock issued as consideration for the acquisition of one would not upon conversion or more businesses may not be resold prior exchange (to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or extent securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof are issued in such transaction), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any represent more than 15% of the economic benefits or risks of ownership of such Company’s then outstanding shares of Common Stock, whether that such securities are issued in connection with a transaction not requiring registration under the Securities Act and that such shares are subject to the same restrictions on sale set forth in this Section 6(i)), or enter into any such transaction described in clause Hedging Transaction (1as defined below) or (2) above is relating to be settled by delivery of the Common Stock or other securities, in cash or otherwiseStock, in each case without the prior written consent of Xxxxxx Brothers Inc.Xxxxxx Partners LLC on behalf of the Underwriters; provided, however, that if (a) during the last 17 days of the 90-day Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (b) prior to the expiration of the 90-day Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day Lock-Up Period, in each case the restrictions imposed by this Section 6(i) shall continue to apply, and the Lock-Up Period will be extended, until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxx Xxxxxx Partners LLC on behalf of the Underwriters waives, in writing, such extension; and to cause each executive officer (other than Xxxxxxx X. Xxxxxx) and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by form of Exhibit A hereto. The Company shall promptly notify Xxxxxx Xxxxxx Partners LLC of any person at earnings release, news or event that may give rise to an extension of the initial 90-day Lock-Up Period. “Hedging Transaction” means any time in short sale (whether or not against the future ofbox) or any shares purchase, sale or grant of Common Stock or securities convertible into or exchangeable for Common Stock or any right (2) enter into any swap or other derivatives transaction that transfers to anotherincluding, in whole or in partwithout limitation, any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock);
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System Market, and to use its best efforts to complete that listing, subject only to official notice of issuance, listing prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company Transactions as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary the Subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 and 1940, as amended, for a period of seven years from the rules and regulations date of the Commission thereunderProspectus;
(m) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Stock;
(n) To 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; and
(o) To not prepare or use a Free Writing Prospectus in connection with the offering and sale of the Stock or to take any actions that would require the Company or the Underwriters to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.supplemented
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, and to notify the Underwriter promptly of such earlier time as may be required by Rule 430A(a)(3) under the Securities Actfiling; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;; and, in the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Stock by the Underwriter (and references herein to the “Registration Statement” shall include any such amendment or new registration statement).
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Representatives Underwriter and, upon their its request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424 of any document incorporated by reference in the Rules and RegulationsProspectus, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filingfiling (which consent may not be unreasonably withheld).
(f) To pay the applicable Commission filing fees relating to the Stock within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein.
(g) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter.
(h) To file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) of the Rules and Regulations; to retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, file such document and prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(fi) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriter an earnings earning statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations Regulations.
(including, at the option j) Until completion of the Company, Rule 158);
(g) For a period of five years following the Effective Datedistribution contemplated hereby, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(hk) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 Stock; 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;.
(il) For a period of 180 45 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could reasonably be expected to, result in the disposition by any person the Company at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than (i) the Stock, (ii) shares of Common Stock or securities convertible into or exchangeable for Common Stock issued pursuant to stock option and purchase employee benefit plans, equity incentive plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) rights, shares of Common Stock issued as consideration for the pursuant to registration statements on Form S-4 in connection with acquisition transactions or earn-out obligations under acquisition transactions or shares of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration upon conversion of the 180-day period referenced aboveCompany’s 1.875% convertible senior notes due 2013 or the 4.0% convertible senior notes due 2014), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options or restricted stock units pursuant to stock option and purchase plans or other employee compensation equity incentive plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockStock (other than hedging arrangements, including calls and warrants, entered into in connection with the Company’s obligation to issue stock or pay cash upon conversion of the Company’s 1.875% convertible senior notes due 2013 or the 4.0% convertible senior notes due 2014) or (3) make any demand for or exercise any right to file or cause to be filed a registration statement with respect to the registration of any share of Common Stock or securities convertible into or exchangeable for Common Stock (other than a registration statement on Form S-4 or S-8), whether any such transaction described in clause (1), (2) or (23) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; andUnderwriter.
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary shall become an "“investment company" within ” as defined in the meaning of such term under 1940 Act.
(n) Not to take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the Investment Company Act of 1940 and the rules and regulations stabilization or manipulation of the Commission thereunderprice of the shares of Common Stock (including the Stock) to facilitate the sale or resale of the Stock.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a1) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereofthereof 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b2) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.filed
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Loral Space & Communications LTD)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, and to notify the Underwriter promptly of such earlier time as may be required by Rule 430A(a)(3) under the Securities Actfiling; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; and, in the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Stock by the Underwriter (and references herein to the “Registration Statement” shall include any such amendment or new registration statement);
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Representatives Underwriter and, upon their its request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424 of any document incorporated by reference in the Rules and RegulationsProspectus, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filingfiling (which consent may not be unreasonably withheld);
(f) To pay the applicable Commission filing fees relating to the Stock within the time required by Rule 456(b)(1) without regard to the proviso therein;
(g) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter;
(h) To file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) of the Rules and Regulations; to retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, file such document and prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(i) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriter an earnings earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158)Regulations;
(gj) For a period Until completion of five years following the Effective Datedistribution contemplated hereby, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hk) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 Stock; 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;
(il) For a period of 180 days from the date of the Prospectus, not to[Reserved.]
(m) Not to take, directly or indirectly, (1) offer for sale, sell, pledge any action designed to cause or otherwise dispose of (or enter into any transaction or device which is designed toresult in, or could which constitutes or which might reasonably be expected toto constitute, result in the disposition by any person at any time in the future of) any shares of Common Stock stabilization or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration manipulation of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third price of the shares of Common Stock so owned as (including the Stock) to facilitate the sale or resale of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Representatives Underwriter and, upon their request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filingfiling (which consent may not be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriter an earnings statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period Until completion of five years following the Effective Datedistribution contemplated hereby, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 Stock; 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;
(i) For a period of 180 60 days from the date of the ProspectusProspectus Supplement, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon exercise of any option or warrant) or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iiior shares issued pursuant to registration statements on Form S-4 in connection with acquisition transactions or earn-out obligations under acquisition transactions) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.the Underwriter (it being understood that (x) gifts and other private transfers of Common Stock solely for the purpose of estate planning and (y) transfers of Common Stock in private transactions shall each be permitted; provided that in the case of any transfer pursuant to the foregoing clauses (x) and (y), the transferee agrees to be bound by all of the foregoing terms and provisions of this Section 5(i)); and to cause each officer of Xxxxxxx X. Xxxxxx and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. X. Xxxxxxxxx to furnish to the RepresentativesUnderwriter, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockExhibit A hereto;
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary shall become an "“investment company" within ” as defined in the meaning of such term under 1940 Act; and
(m) Not to take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the Investment Company Act of 1940 and the rules and regulations stabilization or manipulation of the Commission thereunderprice of the shares of Common Stock (including the Stock) to facilitate the sale or resale of the Stock.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Underwriters of such filing; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and Commission, each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Underwriters and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations, Regulations or any Rule 462(b) Registration Statement to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its public shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Securities may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock Securities for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Representatives Underwriters 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 StockSecurities; provided provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to file execute a general consent to service of process in any jurisdictionjurisdiction in any action other than one arising out of the offering or sale of the Securities;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock Securities being sold by the Company as set forth in the Prospectus; and
(mj) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto Securities and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriter and, upon their requestrequest of the Underwriter, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any (i) Preliminary Prospectus, (ii) amendment to the Registration Statement or supplement to the Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filingfiling (which shall not be unreasonably denied);
(f) As soon as practicable after the Effective Date, Date to make generally available to the Company's security holders and to deliver to the Representatives Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158)Regulations;
(g) For a period of five years following the Effective Date, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Securities may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock Securities for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter may reasonably request and to comply in all material respects with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be reasonably necessary to complete the distribution of the Stock; provided Securities, PROVIDED that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction where it is not now so qualified or (ii) to file a general consent to service of process or take any action which would subject the Company to (A) service of process in suits or other judicial proceedings, other than those arising out of the offering or sale of the Securities, and (B) taxation in any jurisdiction;jurisdiction where it is not now so subject.
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock Securities being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the reasonable judgment of the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(aSection
(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For At the request of the Representatives, for a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; Stock 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock or securities convertible into Common Stock issued pursuant to employee benefit plans, incentive stock option and purchase plans or other employee compensation plans existing on the date hereof or hereof, (ii) pursuant to currently outstanding options, warrants or rights and rights, or (iii) shares of Common Stock issued as consideration or securities convertible into or exchangeable for the acquisition of one or more businesses provided that such Common Stock issued as consideration for by the Company in connection with a strategic partnership, joint venture, collaboration, lending or similar arrangement, or in connection with the acquisition or license by the Company of one any business, products or more businesses may not be resold prior to the expiration of the 180-day period referenced abovetechnologies), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the grant of options options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, incentive stock option and purchase plans or other employee compensation plans existing on the date hereof hereof, (ii) pursuant to currently outstanding options, warrants or rights or (iii) options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock issued in connection with a strategic partnership, joint venture, collaboration, lending or similar arrangement, or in connection with the acquisition or license by the Company of any business, products or technologies), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Xompany to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply tx xxxxy for the inclusion quotation of the Stock on the Nasdaq National Market System and to use its best efforts to complete effect that listingquotation, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary and its Subsidiary shall not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); , and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed met by the Company’s reporting requirements pursuant to the Exchange Act and the rules and regulations promulgated thereunder);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to file a take any action that would subject it to general consent to service of process or taxation in any jurisdictionjurisdiction in which it is not otherwise subject;
(i) For a period of 180 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and (3) file or cause to cause each officer and director of the Company and each stockholder of the Company previously specified be filed a registration statement with respect to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into convertible, exercisable or exchangeable for into Common Stock or any other securities of the Company or (24) enter into any swap or other derivatives transaction that transfers publicly disclose the intention to another, in whole or in part, do any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwiseforegoing, in each case without the prior written consent of Xxxxxx Brothers Inc.the Representatives; provided that, for a period of 150 notwithstanding the foregoing, if (1) during the last 17 days after the date of the final prospectus at which time Lock-Up Period, the foregoing restrictions shall not apply Company issues an earnings release or material news or a material event relating to one-third of such shares of Common Stock, and upon the Company occurs or (2) prior to the expiration of 180 days after the date Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the final prospectus Lock-Up Period, then the foregoing restrictions imposed by this Section 8(i) shall not continue to apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon until the expiration of 210 days after the date 18-day period beginning on the issuance of the final prospectus earnings release or the foregoing restrictions shall expire as occurrence of the material news or material event; and to all such shares cause each Selling Shareholder and each executive officer and director of Common Stockthe Company to furnish to the Representatives, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”);
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Closing Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 Act; and
(m) To comply with all applicable securities and the other applicable laws, rules and regulations of in each foreign jurisdiction in which the Commission thereunderDirected Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Empi Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Spanish Broadcasting System Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of each of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Managers in New York City such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Managers and, upon their request, to file such amended or supplemental prospectus and to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Manager may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries the Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives Lead Managers copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed or quoted pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Managers 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the UnderwritersInternational Managers, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary the Subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Lead Managers and to file such Rule 462(b) Registration Statement with the Commission not later than the day following the execution and delivery of this Agreement; to prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business 10:00 A.M., New York City time, on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the Registration Statement Statements or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, thereof of the time when any amendment to the Registration Statement or any Rule 462(b) either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish provide the Representatives Lead Managers with copies thereof; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters Xxxxxx Brothers International (Europe) a signed copy of each of the Registration Statement, including any Rule 462(b) Registration Statement, Statements 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 Representatives Lead Managers in New York City such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed i)conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus (not later than 10:00 A.M., New York City time, of the day following the execution and delivery of this Agreement) and any amended or supplemented ProspectusProspectus (not later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement); and, if the delivery of a prospectus is required at any time after the Effective Time of the Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto thereto) and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Managers and, upon their request, to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Managers may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statements or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to either of the Registration Statement Statements or supplement to the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;
(f) As soon as practicable after the Effective DateDate of the Primary Registration Statement, to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective DateDate of the Primary Registration Statement, to furnish to the Representatives Lead Managers (i) copies of all materials furnished by the Company to its shareholders generally and generally, (ii) copies of all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock may be listed or quoted pursuant to requirements of or agreements with such exchange or to system, (iii) copies of all reports filed by the Company with the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder and (iv) copies of the publicly available reports filed by the Bank with the OTS;
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Managers 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 Stock; 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;; and
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.International (Europe) on behalf of the Lead Managers; and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the UnderwritersInternational Managers, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any a period of 180 days from the date of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date International (Europe) on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockLead Managers;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: International Underwriting Agreement (Ocwen Financial Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which that will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or and the Representatives, be required by the Securities Act or requested by the Commission;.
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;filing which consent shall not be unreasonably withheld.
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(g) For a period of five years following the Effective Date, to furnish to the Representatives Representatives, to the extent such information is not freely available on the Internet, copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or corporation, to file a general consent to service of process in any jurisdiction;jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is otherwise not subject.
(i) For a period of 180 45 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock to be issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced abovein an acquisition), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.Inc. on behalf of the Underwriters; and to use reasonaxxx xxforts to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Selling Stockholders to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Stock to be sold the Selling Stockholders hereunder) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 45 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Underwriters.
(jx) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To Xo take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder1940, as amended.
Appears in 1 contract
Further Agreements of the Company. The Company agreesagrees with the several Underwriters that:
(a) To The Company will prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and file such Rule 462(b) Registration Statement with the Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the Registration Statement Statements or to the Prospectus except as permitted hereinprior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement Statements has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required If at any time after the Effective Time in connection with the offering or sale date of this Agreement when a prospectus relating to the Stock or is required to be delivered any other securities relating thereto and if at such time any events shall have occurred event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary time to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in order the Prospectus to comply with the Securities Act or the Exchange Act, to the Company will promptly notify the Representatives and, thereof and upon their request, request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to prepare and Section 13 or 14 of the Exchange Act that will correct such statement or omission or effect such compliance. The Company will furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an such amended or supplemented Prospectus. Notwithstanding the foregoing, if any Underwriter is required to deliver a prospectus relating to the Stock nine months or more after the date of this Agreement, the preparation and furnishing of such amended or supplemented Prospectus which will correct or the making of such statement or omission or effect filing shall be at the expense of such complianceUnderwriter.
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of each of the Registration Statements as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) To file deliver promptly to the Representatives in New York City such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission any and each amendment to the Registration Statement, including any filing required under Rule 462(bthereto (in each case excluding exhibits), or (ii) each preliminary prospectus, (iii) the Prospectus (not later than 10:00 A.M., New York time, of the business day following the execution and delivery of this Agreement) and any amended or supplemented Prospectus (not later than 10:00 A.M., New York time, on the business day following the date of such amendment or supplement) and (iv) any supplement to document incorporated by reference in the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;(excluding exhibits thereto).
(e) Prior To make generally available to filing with its stockholders as soon as practicable, but in any event not later than eighteen months after the Commission any amendment to effective date of the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Statements (as defined in Rule 424 158(c) of the Rules and Regulations), to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, such Rule 158);.
(gf) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the The Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly will promptly take from time to time to take such action actions as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request designate and to comply with continue such laws qualifications in effect for so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution of the Stock; provided that in connection therewith the Company and its subsidiaries shall not be required obligated to qualify as a foreign corporation corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(g) During the period of five years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, as soon as they are available, copies of (i) For all reports or other communications furnished to stockholders and (ii) all reports and financial statements furnished or filed with the Commission pursuant to the Exchange Act or any national securities exchange or automatic quotation system on which the Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of any shares of or securities convertible into or exercisable or exchangeable for Common Stock, or announce the offering of, or file any registration statement under the Securities Act (other than a registration statement on Form S-8) in respect of, any shares of or securities convertible into or exercisable or exchangeable for Common Stock, in each case for a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose Prospectus without the prior written consent of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (SX Xxxxx other than (i) the Stock, (ii) Company’s sale of the Stock hereunder and the issuance of shares of Common Stock issued pursuant to the Company’s stock option and purchase incentive plans or other employee compensation stock purchase plans existing as in existence on the date hereof or pursuant to its currently outstanding options, warrants or rights rights, in each case as described in the Prospectus, all of which issuances will be made in compliance with the Securities Act and the Rules and Regulations; provided, however, that if (iiiA) shares the Company issues an earnings release or material news or a material event relating to the Company occurs during the last 17 days of Common Stock issued as consideration for the acquisition of one such 90-day period or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold (B) prior to the expiration of such 90-day period, the 180Company announces that it will release earnings results during the 16-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing beginning on the date hereof )last day of such 90-day period, or (2the restrictions imposed by this Section 4(h) enter into any swap or other derivatives transaction that transfers shall continue to another, in whole or in part, any apply until the expiration of the economic benefits or risks of ownership 18-day period beginning on the issuance of such shares earnings release or the occurrence of Common Stock, whether any such transaction described in clause (1) material news or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to material event. The Company will cause each officer officer, director and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. listed in Schedule B to furnish to the Representatives, prior to the First Delivery Closing Date, a letter letter, substantially in the form of Exhibit I hereto.
(i) The Company will supply the Representatives with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(j) Prior to each of the Closing Dates, the Company will furnish to the Representatives, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statements and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, other publicly disseminated communication directly or indirectlyindirectly or hold any press conference with respect to the Company, (1) offer for saleits condition, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in each case the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified), without the prior written consent of Xxxxxx Brothers Inc.the Representatives, for a period of 150 days after unless in the date judgment of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common StockCompany and its counsel, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior notification to the Effective DateRepresentatives, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed such press release or communication is required by it with the Commission;law.
(l) To In connection with the offering of the Stock, until SX Xxxxx shall have notified the Company of the completion of the resale of the Stock, the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Stock, or attempt to induce any person to purchase any Stock; and the Company will not, and will cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to the Option Closing Date that would require the Prospectus to be amended or supplemented pursuant to Section 4(b).
(n) The Company shall at all times comply in all material respects with all applicable provisions of the Sxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; andProspectus under the heading “Use of Proceeds.”
(mp) To take The Company will conduct its affairs in such steps a manner so as shall be necessary to ensure that neither the Company nor any subsidiary shall become was not and will not be an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Lead Managers of such filing; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives Lead Managers such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and Commission, each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Lead Managers and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Managers may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations, Regulations or any Rule 462(b) Registration Statement to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives Lead Managers copies of all materials furnished by the Company to its public shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Representatives Lead Managers 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 Stock; provided provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to file execute a general consent to service of process in any jurisdictionjurisdiction in any action other than one arising out of the offering or sale of the Stock;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) the U.S. Stock, the PInES, the Mandatorily Convertible Preferred Stock, the Seller Depositary Shares, the Seller Convertible Redeemable Preferred Stock, shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights or upon the conversion of the Seller Convertible Redeemable Preferred Stock or the Mandatorily Convertible Preferred Stock, and (iii) other than shares of Common Stock issued by the Company as consideration for to any seller of assets or stock that the acquisition Company or any of one the Subsidiaries is acquiring, provided that any shares so issued to such seller or more businesses sellers, including any shares issued after the date of the Prospectus pursuant to the Walibi Acquisition or the Walibi Tender Offer, in the aggregate, do not exceed one-fifth of the total equity of the Company outstanding at the time of the first such issuance, and further provided that such Common Stock issued seller or sellers (other than the sellers of Walibi) contemporaneously with any such issuance or issuances enter into an agreement with the Lead Managers in substantially the same form as consideration the agreement described in this paragraph (i) for the acquisition of one or more businesses may not be resold prior to the expiration remainder of the 180-90 day period referenced aboveperiod), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), hereof) or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.; and to cause each officer and xxx director of the Company and each stockholder of Hanseatic Corporation, Richland Ventures, L.P., Richland Ventures II, L.P., Lawrence, Tyrrell, Ortale & Smith, Lawrence, Tyrrell, Ortale & Xxxxx II, L.P., Windcrest Partxxxx, [JG Xxxxxersxxx, Ltd.,] [J. David Grissom] and Robert J. Gellert (in the Company previously specified casx xx Xxxxxx X. Xxxxxxx xxxx, xxmited to the Company (A) sharxx xxxx xxx xxx xxx xxcount and (B) shares beneficially owned by Xxxxxx Brothers Inc. Lexfor Corporation) to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1iii) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for Common Stock or (2iv) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1iii) or (2iv) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps xxxxx as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this Agreement on behalf of each of the Six Flags Subsidiaries on the First Delivery Date;
(l) Not to waive the lock-up agreements executed by the Sellers in connection with the Six Flags Acquisition whereby each of the Sellers agreed to not sell any Seller Convertible Redeemable Preferred Stock (or shares of Common Stock issuable upon conversion thereof) during the period of 90 days from the date of the Prospectus, without the prior written consent of Lehman Brothers Inc.; and
(m) To make xx xxxer to purchase the SFTP Senior Subordinated Notes following the Six Flags Acquisition in accordance with the provisions of the indenture for the SFTP Senior Subordinated Notes relating to offers to purchase the SFTP Senior Subordinated Notes upon a change of control of SFTP.
Appears in 1 contract
Samples: International Underwriting Agreement (Premier Parks Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Representatives of such filing; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and Commission, each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations, Regulations or any Rule 462(b) Registration Statement to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its public shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Representatives 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 Stock; provided provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to file execute a general consent to service of process in any jurisdictionjurisdiction in any action other than one arising out of the offering or sale of the Stock;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sellsell or otherwise dispose of (or enter into any transaction or device which is designed to, pledge or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, and other than shares issued by the Company as consideration to any seller of assets or stock that the Company or any of the Subsidiaries is acquiring, provided that any shares so issued to such seller or sellers, including any shares issued pursuant to the Company's acquisition of Stuart, in the aggregate, do not exceed one-third of the total equity of the Company outstanding at the time of the first such issuance, and further provided that such seller or sellers contemporaneously with any such issuance or issuances enter into an agreement with the Representatives in substantially the same form as the agreement described in this paragraph (i) for the remainder of the 180 day period), or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and Hanseatic Corporation, Richland Ventures, L.P., Lawrence, Tyrrell, Xxxxxx & Smith, Lawrence, Tyrell, Xxxxxx & Xxxxx II, L.P., Windcrest Partners, JG Partnership, Ltd., Xxxxx X. Xxxxx, J. Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx (in the case of Xxxxxx X. Xxxxxxx only, limited to (i) shares held for his own account and (ii) shares beneficially owned by Lexfor Corporation) to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, offer for sale, sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for or any rights to acquire Common Stock (other than (i) the Stock, (ii) shares for a period of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on 180 days from the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)Prospectus, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its reasonable best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriters such number of the following documents as the Representatives each Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriters and, upon their request, to prepare and furnish without charge to each Underwriter the Underwriters and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing, which consent shall not be unreasonably delayed or withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Underwriters, for a period of five (5) years following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or market system upon which the Common Stock may be listed or included pursuant to requirements of or agreements with such exchange or market system or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriters 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 StockShares; provided that in connection therewith therewith, the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For Except for the registration of securities pursuant to the exercise of registration rights granted to the holders of the Company's Subordinated Convertible Debentures due 2007, for a period of 180 365 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (ix) the StockSecurities, or (iiy) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) or upon conversion of shares of Common Stock issued as consideration for the acquisition of one Stock), or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation benefit plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockXxxx Xxxx;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(k) During the period of 365 days from the date of the Prospectus, to obtain an executed letter substantially in the form of Exhibit A hereto from each new officer and director who has not previously executed such a letter;
(l) The Company will apply the net proceeds from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus;
(m) Prior to the First Closing Date, the Company will make all filings required to obtain the designation for inclusion of the Shares in the Nasdaq National Market and will effect and maintain such inclusion (or a listing on a national exchange registered under the Exchange Act) for at least five years from the date of this Agreement, including without limitation, compliance with all applicable corporate governance requirements thereof; provided, however, that nothing herein shall affect the Company's ability to sell assets or stock, merge, consolidate or be acquired by any person, and, if as a result of any such sale, merger, consolidation, acquisition or similar transaction, the Company's Common Stock ceases to be publicly traded, this Section 5(m) shall terminate and cease to have further force or effect;
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of the incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock;
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Securities 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 Securities Act, the Exchange Act, and the Rules and Regulations;
(p) For a period of five (5) years from the Closing Date, the Company shall furnish to the Underwriters at the Underwriters' request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company; and
(q) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Underwriters and counsel for the Underwriters, 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.
(r) For a period of five (5) years from the effective date of the Registration Statement, the Company shall nominate one individual selected by Xxxx Xxxx for election to the Board of Directors of the Company (the "Board"), if requested by Xxxx Xxxx, and shall solicit proxies in support of such nomination. If Xxxx Xxxx shall not have designated such an individual at the time of any meeting of the Board or such person shall not have been elected or shall be unavailable to serve, the Company shall notify Xxxx Xxxx of each such meeting. If an individual selected by Xxxx Xxxx is not serving on the Board, an individual selected by Xxxx Xxxx 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 further agrees to provide its outside directors with compensation as deemed appropriate by the Board and as customary for similar companies. The Company shall reimburse the designee to the Board of Xxxx Xxxx for his or her out-of-pocket expenses reasonably incurred in connection with his or her attendance at Board meetings.
(s) For a period of three (3) years from the effective date of the Registration Statement, the Company shall not directly or indirectly offer, sell, contract to sell, sell any option, grant any option, right or warrant for shares of the Company's Common Stock or securities exchangeable or exercisable for or convertible into shares of the Company's Common Stock to any of the Company's directors, officers or employees at a price less than the price per Share set forth in Section 2(a) without the prior written consent of Xxxx Xxxx.
(t) For a period of three (3) years from the effective date of the Registration Statement, the Company shall not effect a change in its accounting firm without the prior written consent of the Representatives, except that no consent is required if the new accounting firm is a "big four" accounting firm.
(u) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002, and will use its best efforts to cause the Company's trustees and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Further Agreements of the Company. The Company agreescovenants and agrees with each Underwriter:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its commercially reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto Stock, and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent may not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed to have been satisfied by the Company’s compliance with the reporting requirements pursuant to the Exchange Act and the rules and regulations thereunder);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not currently so qualified or to file a take any action that would subject it to general consent to service of process or taxation in any jurisdictionjurisdiction in which it is not currently so subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (11)(A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or (B) sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.and Xxxxxxx Xxxxx on behalf of the Underwriters; provided, however, that if (a) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this Section 6(i) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; and to cause each stockholder, officer and director of the Company and Company, in each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. case named on Schedule III hereto, to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in form of Exhibit A hereto (the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one“Lock-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUp Letter Agreement”);
(j) Prior to the Effective Date, to To apply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its commercially reasonable best efforts to complete effect that listingquotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Primary Firm Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder;
(m) In connection with the Directed Share Program, to use its best efforts to ensure that the Directed Shares will be restricted to the extent required by the NASD or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement; provided that Xxxxxx Brothers will notify the Company as to which Directed Share Participants will need to be so restricted. At the request of Xxxxxx Brothers and Xxxxxxx Xxxxx, the Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time; and
(n) To comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus Final Prospectuses in a form approved by the Representatives Representative and to file such Prospectus each of the Final Prospectuses pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the either Final Prospectus except as permitted herein; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the either Final Prospectus or any amended Final Prospectus has been filed and to furnish the Representatives Representative with copies thereof; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Interim Prospectus or the either Final Prospectus, of the suspension of the qualification of the Preferred Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the either Final Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Basic Prospectus, Interim Prospectus or the either Final Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Representative and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Representative such number of the following documents as the Representatives Representative shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Interim Prospectus, the each Final Prospectus and any amended or supplemented Final Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Preferred Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the either Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the such Final Prospectus in order to comply with the Securities Act, to notify the Representatives Representative and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Representative may from time to time reasonably request of an such amended or supplemented Final Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the either Final Prospectus or any supplement to the either Final Prospectus that may, in the judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the either Final Prospectus or any Prospectus prospectus pursuant to Rule 424 of the Rules and RegulationsRules, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters and obtain the consent of the Representatives Representative to the filingfiling such consent, which consent shall not be unreasonably withheld;
(f) As soon as practicable after the Effective Datedate of each Final Prospectus, to make generally available to the Company's security holders and to deliver to the Representatives Representative an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Datedate of each of the Final Prospectuses, upon request by the Representative, to furnish to the Representatives Representative copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Representative may reasonably request to qualify the Preferred Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Representative 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 Preferred Stock; 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;
(i) For a period of 180 90 days from the date of each of the ProspectusFinal Prospectuses, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock preferred stock or securities convertible into or exchangeable for Common Stock preferred stock of the Company (other than (i) the Stock, (ii) Preferred Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Preferred Stock or securities convertible into or exchangeable for Common Preferred Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Preferred Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Preferred Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and or (3) file or cause to cause each officer and director of the Company and each stockholder of the Company previously specified be filed a registration statement on Form S-8 or other similar form with respect to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Preferred Stock or securities convertible into convertible, exercisable or exchangeable for Common into Preferred Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any securities of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwiseCompany, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Underwriters; and
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply xxxxx the net proceeds from the sale of the Preferred Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations each of the Commission thereunderFinal Prospectuses.
Appears in 1 contract
Samples: Underwriting Agreement (Principal Financial Group Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Managers such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Managers and, upon their request, to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Managers may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 455 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives Lead Managers copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Managers 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.International (Europe); and to cause each officer officer, director and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the UnderwritersInternational Managers, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockInternational (Europe);
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange, Inc. and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters International Managers and receive and consider its comments thereon, and to deliver promptly to the Representatives Lead Managers a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: International Underwriting Agreement (Hk Systems Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, Representatives promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsAgreement); , and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.each
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file transmit for filing such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening notification of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed transmitted for filing with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.exhibits
Appears in 1 contract
Samples: Underwriting Agreement (Speedfam International Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment amendments or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 each of the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made made, when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to deliver to the Representatives and to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 distributions of the StockShares; provided except 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 file execute a general consent to for service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or or, during such period, enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Shares and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc.; , and to cause each officer and director of the Company Company, and each stockholder other holder of shares constituting (or shares convertible into, or options exercisable for) at least three percent (3.0%) of the outstanding common stock of the Company previously specified prior to consummation of the Company by Xxxxxx Brothers Inc. Offering, to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockLehmxx Xxxthers Inc;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock Shares being sold by the Company as set forth in the Prospectus; and;
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder;
(l) Prior to the Effective Date, to apply for the inclusion of the Shares on the Nasdaq National Market and use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date; and
(m) To comply with all registration, filings and reporting requirements of the Exchange Act, which may from time to time be applicable to the Company and to comply with all provisions of all undertakings contained in the Registration Statement.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in connection with the offering or sale of the Stock hereunder in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish deliver to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder (it being understand that filing on XXXXX shall be deemed to constitute delivery hereunder);
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably 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 reasonably necessary to complete the distribution of the Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each executive officer and director of the Company and each stockholder members of the Company previously specified to the Company by Xxxxxx Brothers Inc. Company’s board of directors Xx. Xxxxxxxx and Messrs. Xxxxxx, Xxxxxxxx, Xxxxxx, and Xxxxx to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1x) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2y) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1x) or (2y) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time Underwriters, subject in each case to the foregoing restrictions shall not apply exceptions set forth in Exhibit A; provided that if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to one-third of such shares of Common Stock, and upon the Company occurs; or (2) prior to the expiration of 180 days after the date 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the final prospectus 90-day period, the foregoing restrictions imposed by this Agreement shall not continue to apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon until the expiration of 210 days after the date 18-day period beginning on the issuance of the final prospectus earnings release or the foregoing restrictions shall expire as to all such shares occurrence of Common Stockthe material news or material event;
(j) Prior to the Effective Date, to apply for the inclusion To submit a Nasdaq Notification Form: Listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, Additional Shares no later than 10 days prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act; and
(l) To comply, in all material respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 1940 and the rules and regulations of the Commission thereunder2002.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Representative with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Representative and to counsel for the Underwriters a signed conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Representative such number of the following documents as the Representatives Representative shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including consents and exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any Incorporated Document (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Preliminary Prospectus, the Prospectus or the Time of Sale Information as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus or the Prospectus or the Time of Sale Information is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Preliminary Prospectus or the Prospectus or the Time of Sale Information in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Representative and, upon their its request, to file such amendment or supplement with the Commission and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Representative may from time to time reasonably request of an amended or supplemented Preliminary Prospectus or the Prospectus or the Time of Sale Information which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Representative or counsel to the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus or any Prospectus Issuer Free Writing Prospectus, any Incorporated Document pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters and obtain the consent (which may be oral) of the Representatives Representative to the filing;
(f) As soon as practicable Not to make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior consent of the Representative;
(g) To retain in accordance with the Securities Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act; and if at any time after the Effective Datedate hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary 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 the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(h) To make generally available to the Company's its security holders and to deliver to as soon as practicable but no later than 60 days after the Representatives close of the period covered thereby an earnings statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules and Regulations, covering a twelve-month period commencing after the “effective date” (including, at the option as defined in said Rule 158) of the Company, Rule 158)Registration Statement;
(gi) For a period of five years following the Effective Date, to To furnish to each Underwriter, from time to time during the Representatives period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of all materials furnished the Prospectus and the Time of Sale Information (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of Securities Act or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation the respective applicable rules and regulations of the Commission thereunder;
(hj) To consent to the use of the Prospectus and the Time of Sale Information (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 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 Securities Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Securities Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Securities Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof;
(k) Promptly from time to time to take such action as the Representatives Representative may reasonably request to qualify the Stock Shares for offering and sale under the securities securities, real estate syndication or Blue Sky laws of such jurisdictions as the Representatives Representative 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 StockShares;
(l) During the period of five years hereafter, upon request of the Underwriters, to furnish to the Underwriters, (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (iii) from time to time, such other information concerning the Company as the Underwriters may reasonably request; provided that in connection therewith any document that is available on the Company SEC’s XXXXX system shall not be required deemed furnished to qualify as a foreign corporation or to file a general consent to service of process in any jurisdictionthe Underwriters;
(im) For a period of 180 45 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1i) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exchangeable for Common Stock Shares (other than (iw) the StockShares, (iix) shares of Common Stock Shares issued pursuant to stock employee benefit plans, qualified share option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and rights, (iiiy) shares Common Shares issuable upon redemption of the Units, or (z) Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior Shares issuable pursuant to the expiration of dividend reinvestment plans and employee share purchase plans existing on the 180-day period referenced abovedate hereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock Shares or securities convertible into or exercisable or exchangeable for any Common Stock Shares (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockShares, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock Shares or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Shares or securities convertible, exercisable or exchangeable into Common Shares or any other securities of the Company (other than a registration statement on Form S-8 or a registration statement on Form S-3 with respect to a dividend reinvestment plan) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Xxxxxx Brothers Inc.; the Representative on behalf of the Underwriters, and to cause each officer and director officer, trustee, shareholder of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. set forth in Schedule 4 hereto to furnish to the RepresentativesRepresentative, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for of Exhibit A hereto (each a “Lock-Up Letter Agreement”); notwithstanding the Underwritersforegoing, pursuant to which each such person shall agree not to, directly or indirectly, if (1) offer for saleduring the last 17 days of the Lock-Up Period, sell, pledge the Company issues an earnings release or otherwise dispose of (announces material news or enter into any transaction or device which is designed to, or could be expected to, result in a material event relating to the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock Company occurs or (2) enter into any swap or other derivatives transaction that transfers prior to another, in whole or in part, any the expiration of the economic benefits or risks Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of ownership the Lock-Up Period, then the restrictions imposed above shall continue to apply until the expiration of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a 18-day period of 150 days after beginning on the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date issuance of the final prospectus earnings release or the foregoing restrictions shall not apply to an additional one-third announcement of the shares of Common Stock so owned as material news or the occurrence of the date material event, unless the Representative, on behalf of the final prospectusUnderwriters, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all waives such shares of Common Stockextension in writing;
(jn) Prior to To apply the Effective Date, to net proceeds from the sale of the Shares being sold by the Company in accordance with the description set forth in the Prospectus and the Time of Sale Information under the caption “Use of Proceeds;”
(o) To apply for the inclusion listing of the Stock Shares on the Nasdaq National Market System NYSE and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(kp) Prior During the period when the Prospectus is required to filing be delivered under the Securities Act or the Exchange Act, the Company will (1) comply with all provisions of the Securities Act and the Rules and Regulations and (2) file all documents required to be filed with the Commission any reports on Form SR pursuant to Rule 463 the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionCommission thereunder;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mq) To take such steps as shall be necessary to ensure that neither of the Company nor any subsidiary of its subsidiaries shall become an "“investment company" ” within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(r) The Company will use its best efforts to continue to be organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for each of its taxable years; and
(s) Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus and the Time of Sale Information, neither the Company nor the Operating Partnership will (1) prior to the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus, take, directly or indirectly, any action designated to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (2) until the Delivery Date, sell, bid for or purchase the Shares or pay any person any compensation for soliciting purchases of the Shares; or (3) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in no event later than 15 months after the Effective Date), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase or equity plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Representatives except that the Company may issue up to 3,000,000 shares of Common Stock or other securities of the Company in exchange for the equity or substantially all of the assets of a company or business in connection with a merger or acquisition, provided that prior to any such issuance the recipients of such shares of Common Stock or other securities shall have agreed in writing to be bound by this provision for the remainder of the 180-day period; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any a period of 180 days from the date of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock for quotation on the Nasdaq National Market System and to use its best efforts to complete that listingeffect such quotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (International Telecommunication Data Systems Inc)
Further Agreements of the Company. The Company further agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the RepresentativesUnderwriters , promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Underwriters of such filing; to advise the RepresentativesUnderwriters , promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and Commission, each amendment thereto (in each case excluding exhibits other than this Agreement Agreement) and any computation of per share earnings); and Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Underwriters and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations, Regulations or any Rule 462(b) Registration Statement to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;
(f) As The Company will make generally available to holders of its securities as soon as may be practicable an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, to make generally available to and satisfying the Company's security holders and to deliver to the Representatives an earnings statement provisions of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and (including Rule 158 of the Rules and Regulations (including, at the option of the Company, Rule 158Regulations);.
(g) For a period of five years following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its public shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock PIES may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock Securities for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Representatives Underwriters 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 StockSecurities; provided provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to file execute a general consent to service of process in any jurisdictionjurisdiction in any action other than one arising out of the offering or sale of the Securities;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any PIES or shares of Common Stock or any securities convertible into or exchangeable for PIES or Common Stock (other than (i) the Securities, the Mandatorily Convertible Preferred Stock, (ii) the Common Stock issued in the Common Stock Offering and upon conversion of the Mandatorily Convertible Preferred Stock and the shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration upon conversion of the 180-day period referenced above)Convertible Subordinated Debentures of Coastwide Energy Services, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), Inc.) or (2B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stocksecurities, whether any such transaction described in clause (1A) or (2B) above is to be settled by delivery of PIES, shares of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary of the Company shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder.
(k) To apply the net proceeds from the sale of the Notes as set forth under the caption "Use of Proceeds" in the Prospectus.
(l) To do all things required or necessary to be done or performed under this Agreement prior to such Delivery Date by such date and to satisfy the closing conditions set forth in Section 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Tesoro Petroleum Corp /New/)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably delayed or withheld;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least November 14, 2000), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Representatives, for a period of five two years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (iv) the Stock, (iiw) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (x) shares issued upon conversion of the Company's outstanding preferred stock (provided that any holder of such shares shall furnish to the Representatives at or prior to the time of such issuance a letter in the form of Exhibit A hereto), (y) shares issued upon exercise by the Company of its call rights and under its agreements relating to ITXC Comunicacoes Ltda. (iii) provided, that any holder of shares of Common Stock issued as consideration or substantially similar securities or securities convertible or exchangeable for the acquisition of one or more businesses provided that such Common Stock issued as consideration for or substantially similar securities, in each case issuable upon the acquisition exercise of one such rights, shall furnish to the Representatives at or more businesses may not be resold prior to the expiration time of such issuance a letter in the form of Exhibit A hereto) or (z) shares issued in a private placement transaction (provided, that such shares shall not be publicly resold during the period of 180 days after the date of the 180-day period referenced above)Prospectus; provided, further, that the holder of shares issued in such a transaction shall furnish to the Representatives at or prior to the time of such issuance a letter in the form of Exhibit A hereto) or substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each shareholder of the Company owning at least [_______] shares of Common Stock or common stock equivalents and each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Company, to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Exhibit A hereto.
(j) Prior to the Effective Date, to To apply for the inclusion of the Stock on in the Nasdaq National Market System System, and to use its best efforts to complete that listingprocess, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder.; and
(m) During the period of 180 days from the date of the Prospectus, (i) to obtain from each person that exercises options to purchase shares of Common Stock an executed letter in the form of Exhibit A hereto and a stock option exercise notice in the form of Exhibit B hereto and (ii) to not amend such stock option exercise notice in a manner adverse to the Representatives without the prior consent of Xxxxxx Brothers Inc.
Appears in 1 contract
Samples: Underwriting Agreement (Itxc Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); and ) and, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.. To the extent applicable, the copies of the Registration Statement and each amendment thereto (including all exhibits filed therewith), including any Rule 462(b) Registration Statement, any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) furnished to the U.S. Underwriters and counsel to the U.S. 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;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement Statement, including any filing required under Rule 462(b), or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders shareholders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a11 (a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to those of the Representatives who may so request copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; and to the extent applicable, such reports or documents shall be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided provided, however, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdictionjurisdiction where it is not now so subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) to offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) ), directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director and each record owner of shares of Common Stock and Preferred Stock of the Company and each stockholder of other than those record owners listed in writing by the Company previously specified to Xxxxxx Brothers, Inc. and approved by it prior to the Company by Xxxxxx Brothers Inc. First Delivery Date, to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the U.S. Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) to offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) ), directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any a period of 180 days from the date of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the U.S. Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Vivid Technologies Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Closing Date except as permitted hereinherein (provided, however, this clause shall, in the case of any periodic or current report that the Company is required to file pursuant to Section 13(a), 13(c) or Section 15(d) under the Exchange Act prior to or at the Closing Date, apply to the extent practicable in the light of the circumstances, but in any event, the Underwriters shall be notified in advance of any such filing that will be incorporated by reference in the Prospectus); to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Debentures; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, of the suspension of the qualification of the Stock Debentures for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required at any time after the Effective Time effective date of the Registration Statement in connection with the offering or sale of the Stock Debentures or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriters and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which that will correct such statement or omission or effect such compliance.
(dc) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), the Time of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the Prospectus that may, in the judgment of the Company or and the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;.
(ed) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Time of Sale Prospectus or the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;filing which consent shall not be unreasonably withheld.
(e) To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriters reasonably object, provided that the prior written consent of the Underwriters hereto shall be deemed to have been given in respect of the final term sheet attached hereto as Exhibit B hereto.
(f) As soon Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) If the Time of Sale Prospectus is being used to solicit offers to buy the Debentures at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as practicable after a result of which it is necessary to amend or supplement the Effective DateTime of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(h) To make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriters as soon as practicable an earnings earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company and its subsidiaries (occurring after the date of this Agreement which need not be audited) complying with shall satisfy the provisions of Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);Regulations.
(gi) For a period of five years following the Effective Dateeffective date of the Registration Statement, to furnish to the Representatives Underwriters, to the extent such information is not freely available on the Internet, copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(hj) Promptly from time to time to take such action as the Representatives you may reasonably request to qualify the Stock Debentures and the Underlying Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Representatives you may request (provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject or subject itself to taxation in excess of any nominal amount in any such jurisdiction where it is not then so subject) 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 Stock; provided Debentures.
(k) To use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the First Closing Date and to satisfy all conditions precedent on its part to the delivery of the Debentures.
(l) To apply the net proceeds from the sale of the Debentures as set forth in the Prospectus under the section entitled “Use of Proceeds.”
(m) For the period that in connection therewith is two years after the First Closing Date to take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of the Company shall not be required become an “investment company” within the meaning of such term under the Investment Company Act and the rules and regulations of the Commission thereunder.
(n) If the third anniversary of the effective date of the Registration Statement occurs before all the Debentures have been sold by the Underwriters, prior to qualify as a foreign corporation or the third anniversary to file a general consent new shelf registration statement and to service take any other action necessary to permit the public offering of process in any jurisdiction;the Debentures to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(io) To prepare a final term sheet relating to the offering of the Debentures, containing only information that describes the final terms of the Debentures or the offering in the form of Exhibit B hereto, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Debentures.
(p) To use its best efforts to cause all shares of Common Stock issuable upon conversion of the Debentures to be listed on the NYSE or listed on a “national securities exchange” registered under the Section 6 of the Exchange Act on which shares of its Common Stock are then listed.
(q) To reserve and keep available at all times, free of preemptive rights, shares of the Underlying Securities for the purpose of enabling the Company to satisfy any obligations to issue shares of the Underlying Securities upon conversion of the Debentures.
(r) For a period of 180 45 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) or file any registration statement in respect of any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Debentures and shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock to be issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced abovein an acquisition), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of such options or such rights pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director Mxxxxx Sxxxxxx & Co. Incorporated on behalf of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare a Prospectus including the Prospectus Rule 430A Information in a form approved by the Representatives Lead Manager and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Manager, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended or supplemented Prospectus has been filed and to furnish the Representatives Lead Manager with copies thereof; to advise the RepresentativesLead Manager, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Lead Manager and to counsel for the Underwriters International Managers a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Manager such number of the following documents as the Representatives Lead Manager shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Manager and, upon their its request, to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Manager may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Manager, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and 1933 Act Regulations, to furnish a copy thereof to the Representatives Lead Manager and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Manager to the filing;
(f) As soon Timely file such reports pursuant to the U.S. Securities Exchange Act of 1934, as practicable after amended (the Effective Date, "Exchange Act") as are necessary in order to make generally available to the Company's security holders and to deliver to the Representatives its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158)Act;
(g) For a period of five years following the Effective DateTime, to furnish to the Representatives Lead Manager copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;; and
(h) Promptly from time to time to take such action as the Representatives Lead Manager may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Manager 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 Stock; provided 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: International Underwriting Agreement (Bank United Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent will not be unreasonably withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided provided, however, that in connection therewith the Company shall not be required to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to file a general consent subject itself to service of process taxation as doing business in any jurisdiction;
(ih) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, ; whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(ji) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listinginclusion, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(lj) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which that will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or and the Representatives, be required by the Securities Act or requested by the Commission;.
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;filing which consent shall not be unreasonably withheld.
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(g) For a period of five years following the Effective Date, to furnish to the Representatives Representatives, to the extent such information is not freely available on the Internet, copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or corporation, to file a general consent to service of process in any jurisdiction;jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is otherwise not subject.
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock to be issued as consideration for in an acquisition or the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration Long Term Incentive Plan of the 180-day period referenced aboveCompany to be approved by the Company’s stockholders at the Company’s next annual meeting), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx each of Mxxxxx Sxxxxxx & Co. Incorporated and Lxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each officer and director of the Company Company’s directors and each stockholder of the Company previously specified executive officers to the Company by Xxxxxx Brothers Inc. to furnish to the Representativesfurnish, prior to the First Delivery Date, a letter or letters, letters substantially in the form and substance satisfactory to counsel for of Exhibit A hereto (the Underwriters“Lock-Up Letter Agreement”), pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Stock to be sold by the Company and the Selling Stockholders hereunder) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx each of Mxxxxx Sxxxxxx & Co. Incorporated and Lxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Underwriters.
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder1940, as amended.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, provided that after the date which is one year following the completion of the issuance and delivery of shares to the Underwriters and the sale contemplated by the Prospectus, the Representatives shall bear the cost of such request, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any an appropriate amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives Underwriters, such amendment to be reasonably satisfactory to the filingRepresentatives;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof )Stock, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; , and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the other than shares of Common Stock so owned as of issued in the date of Offering, under the final prospectusCompany's GlobalShare Plan, and or upon the expiration exercise of 210 days after stock options granted pursuant to the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockGlobalShare Plan;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR its first periodic report pursuant to Section 13(a) or 15(d) of the Securities Act that includes the information required pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each such report on Form SR filed by it with the Commission;
(l) To apply For a period of two years following the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To date hereof, to take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the United States Investment Company Act of 1940 and the rules and regulations of the Commission thereunder; and
(m) To cause each current holder of Common Stock to execute and deliver an agreement stating that, without the prior written consent of Xxxxxx Brothers Inc., such current stockholder will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by such current stockholder in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of any option or warrant) or securities convertible into or exchangeable for Common Stock (other than the Shares) owned by such current stockholder on the date of the completion of the offering, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise: (a) for a period of 180 days after the date of the final Prospectus relating to the Offering, and (b) with respect to shares currently owned by such current stockholder (which shall not include any shares of Common Stock purchased or acquired upon the exercise of options granted pursuant to the 1998 Xxxxxxxx & Struggles GlobalShare Program I or the 1998 Xxxxxxxx & Struggles GlobalShare Program II), for a period of two years after the date of the final prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Heidrick & Struggles International Inc)
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Stock and Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each stockholder and optionholder listed on Schedule 3 hereto and each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in the case of each Officer and Director of the Company for a period of 90 days from the date of the Prospectus from the date of the Prospectus, in either case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUnderwriters;
(j) Prior to the Effective Date, to To apply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete effect that listingquotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for to the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any documents incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such documents and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus Prospectus, or any Prospectus document incorporated by reference in the Prospectus, pursuant to Rule 424 of the Rules and RegulationsSecurities Act, to furnish a copy thereof to the Representatives and counsel for to the Underwriters and obtain the consent of the Representatives to the filing, such consent not to be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158158 of the Securities Act);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time time, to take such action as the Representatives may reasonably request to qualify the Stock Securities for offering and sale under the securities laws of such jurisdictions as the Representatives 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 StockSecurities; provided that that, in connection therewith 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 jurisdictionjurisdiction in which the Company is not already so qualified or has not so consented;
(h) For a period of two years following the First Delivery Date, to furnish to the Underwriters copies of all written materials furnished by the Company to its shareholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act; provided, however, that the Company shall not be required to provide the Underwriters with any such reports or similar forms that have been filed with the Commission by electronic transmission pursuant to XXXXX;
(i) For a period of 180 90 days from the date of the Prospectushereof, not to, directly or indirectly, (1) announce an offering of, or file any registration statement with the Commission relating to, equity securities of the Company (other than the offering contemplated by this Agreement) or offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Securities and shares of Common Stock to be issued pursuant to in the ordinary course under the Company's employee benefit plans, stock option and plans, employee stock purchase plans plan or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iiirights) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, warrants or rights or warrants with respect to any shares of Common Stock or Stock, securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options options, warrants or rights pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each officer and director of the Company and each stockholder of the Company previously persons specified to the Company by Xxxxxx Brothers Inc. on Schedule III hereto to furnish to the Representatives, on or prior to the First Delivery Datedate hereof, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in the future of) any shares form of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockAnnex A hereto;
(j) Prior To cause the Securities to be approved by the Effective Date, to apply New York Stock Exchange ("NYSE") for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, listing prior to the First Delivery Date;
(k) Prior Not to filing take, directly or indirectly, any action which is designed to stabilize or manipulate, or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation, of the price of any security of the Company in connection with the Commission any reports on Form SR pursuant to Rule 463 offering of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionSecurities;
(l) To apply the net proceeds from the issuance and sale of the Stock being sold by the Company Securities as set forth under "Use of Proceeds" in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "investment company" within the meaning of such term as defined, and subject to regulation, under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunderAct.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file transmit for filing such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening notification of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed conformed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed transmitted for filing with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any Agreement, the computation of per share earnings); earnings and any exhibits incorporated by reference to the Company's Registration Statement on Form S-3, SEC File No. 333-35835, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.compliance and, in case any Underwriter is required to deliver a Prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at the expense of such Underwriter, will prepare promptly such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act;
(d) To file transmit for filing promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment 9. 10 of the Company or the Representatives, be required by the Securities Act or the Exchange Act or requested by the Commission;
(e) Prior to transmission of filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and RegulationsRegulations or file any document under the Exchange Act if such document would be deemed to be incorporated by reference into the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filingUnderwriters;
(f) As soon as practicable after the Effective Date, Date to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock or options issued or granted pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the or in connection with an acquisition of one assets or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveother business combination), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any a period of 90 days from the date of the economic benefits or risks of ownership of such shares of Common StockProspectus, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior That the Company's common stock currently outstanding is listed on the Nasdaq National Market System and prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company substantially as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder; and
(m) The Company, during the period when the Prospectus is required to be delivered under the Securities 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 rules and regulations thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Speedfam International Inc)
Further Agreements of the Company. (a) The Company agreescovenants and agrees with each Underwriter:
(ai) To prepare the Prospectus in a form approved by the Representatives Representative and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission's ’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 Agreement; to file any Issuer Free Writing Prospectus to the extent required to be required by filed under Rule 430A(a)(3) under 433 of the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Prospectus last Delivery Date except as permitted provided herein; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Representative with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; and to pay any fees required by the Commission relating to the Shares within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r);
(bii) To furnish promptly to each of the Representatives Representative and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(ciii) To deliver promptly to the Representatives Representative such number of the following documents as the Representatives Representative shall reasonably request: (iA) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share unit earnings); and , (iiB) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus; and (D) other than documents available by XXXXX (as defined below) any document incorporated by reference in the Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto (or in lieu thereof, the notice referred to in Rule 173(a)) and if at such time any events shall have occurred as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Representative and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Representative may from time to time reasonably request of an amended supplemented Pricing Disclosure Package or supplemented the Prospectus which that will correct such statement or omission or effect such compliance.;
(div) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), the Pricing Disclosure Package or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or the Exchange Act or requested by the Commission;
(ev) Prior During such period as the Underwriters are required to deliver a prospectus in connection with the offering contemplated hereby, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, any document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any amendment to any document incorporated by reference in the Pricing Disclosure Package or the Prospectus or any prospectus pursuant to Rule 424 424(b) of the Rules and Regulations, Regulations to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters and obtain the consent of the Representatives Representative to the filing, which consent shall not be reasonably withheld and which shall be provided to the Company promptly after having been given notice of the proposed filing; provided that, the foregoing provision shall not apply if such filing is, in the judgment of counsel to the Company, required by law;
(fvi) Not to make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative.
(vii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary 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 the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representative and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representative may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available via the Commission’s Electronic Data Gathering, Analysis and Retrieval (XXXXX) System, to the Company's ’s security holders and to deliver to the Representatives Representative an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(gix) For a period of five two years following the Effective Date, to furnish furnish, or to make available via XXXXX, to the Representatives copies Representative a copy of all materials furnished by the Company to its shareholders generally stockholders (excluding any periodic income tax reporting materials) and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hx) Promptly from time to time to take such action as the Representatives Representative may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives Representative 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 StockShares; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any jurisdictionsuch jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(ixi) For a period of 180 days from commencing on the date hereof and ending on the 60th day after the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) ), any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Shares and Common Stock issued pursuant to stock employee benefit plans, qualified option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, restricted stock units, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options or restricted stock units pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction agreement that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8 or the replacement of any registration statement in existence on the date hereof upon its expiration), or (4) publicly disclose the intention to do any of the foregoing, except in each case without case, (A) in connection with the private issuance of Common Stock as full or partial consideration for an acquisition to recipients who agree in writing to a lock-up period that ends after the Lock-Up Period, or (B) with the prior written consent of Xxxxxx Brothers Inc.; Xxxxxxx & Co. LLC on behalf of the Underwriters, and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. set forth on Schedule 2 hereto to furnish to the RepresentativesRepresentative, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result substantially in the disposition by any person at any time in form of Exhibit A hereto (the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one“Lock-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUp Agreements”);
(jxii) Prior To apply the net proceeds from the offering of the Shares as set forth in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that the Effective DateCompany shall not become an “investment company” as defined in the Investment Company Act of 1940, to as amended;
(xiv) To apply for the inclusion supplemental listing of the Stock Shares on the Nasdaq National Market System New York Stock Exchange (“NYSE”), and to use its reasonable best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;; and
(kxv) Prior To not directly or indirectly take any action designed to filing with or which constitutes or which might reasonably be expected to cause or result in, under the Commission Exchange Act or otherwise, stabilization or manipulation of the price of any reports on Form SR pursuant security of the Company to facilitate the sale or resale of the Shares.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 463 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations but excluding any Issuer Free Writing Prospectus, to furnish including any road show constituting a copy thereof to free writing prospectus under Rule 433 of the counsel for the Underwriters Rules and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it Regulations in connection with the Commission;
(l) To apply the net proceeds from the offer and sale of the Stock Shares) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, being sold defined as “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as set forth used in this Section 5(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
(c) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the Prospectuslight of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; and(ii) amend or supplement the Pricing Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(md) To take If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act (including in circumstances where such steps requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then 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 at such time not misleading, or if it shall be necessary to ensure that neither amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company nor promptly will (i) notify the Representative of any subsidiary shall become such event; (ii) prepare and file with the Commission, subject to clause (a)(i) of this Section 5, an "investment company" within amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (iii) use its best efforts to have any amendment to the meaning of such term under the Investment Company Act of 1940 and the rules and regulations Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Commission thereunderProspectus; and (iv) supply any amendment or supplement to you in such quantities as you may reasonably request.
Appears in 1 contract
Further Agreements of the Company. The Company agreesagrees with the Underwriter:
(a) To prepare the Final Prospectus in a form approved by the Representatives Underwriter and to file such Final Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Final Prospectus except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus or any amended Final Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Final Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Final Prospectus and any amended or supplemented Final Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Final Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriter and, upon their its request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Final Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filing, which consent shall not be unreasonably delayed or withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Underwriter, for a period of five two (2) years following the Effective Date, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders stockholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or market upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or market or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder (except for such materials, reports and statements as are available on XXXXX);
(h) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 StockShares; provided that in connection therewith therewith, the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the ProspectusProspectus (the "Lock-Up Period"), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (ix) the StockShares, or (iiy) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) or upon conversion of shares of Common Stock issued as consideration for the acquisition of one Stock), or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)substantially similar securities, or sell or grant options, rights or warrants with respect to any up to 50,000 shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than such 50,000 share cap shall not apply to the grant of options pursuant to stock option and purchase plans or other employee compensation benefit plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and Xxxx, Xxxx. Notwithstanding the foregoing, for the purpose of allowing the Underwriter to cause each officer and director comply with NASD Rule 2711(f)(4), if (1) during the last 17 days of the Company and each stockholder of Lock-Up Period, the Company previously specified releases earnings results or publicly announces other material news or a material event relating to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock occurs or (2) enter into any swap or other derivatives transaction that transfers prior to another, in whole or in part, any the expiration of the economic benefits or risks Lock-Up Period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of ownership of such shares of Common Stockthe Lock-Up Period, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, then in each case without the prior written consent Lock-Up Period will be extended until the expiration of Xxxxxx Brothers Inc., for a the 18 day period of 150 days after beginning on the date of release of the final prospectus at which time earnings results or the foregoing restrictions shall public announcement regarding the material news or the occurrence of the material event, as applicable, unless Xxxx, Xxxx waives, in writing, such extension. The Company agrees not apply to one-third accelerate the vesting of such shares any option or warrant or the lapse of Common Stock, and upon any repurchase right prior to the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional oneLock-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUp Period;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(k) During the period of 180 days from the date of the Prospectus, to obtain an executed letter in the form of Exhibit A hereto from each new officer and director who has not previously executed such a letter;
(l) The Company will apply the net proceeds received by it from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus;
(m) Prior to the First Closing Date, the Company will make all filings required to list the Company Shares on the Nasdaq National Market, subject only to official notice of issuance;
(n) The Company will maintain a Transfer Agent for its Common Stock; and
(o) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Underwriter and counsel for the Underwriter, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Franklin Credit Management Corp/De/)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including consents and exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Preliminary Prospectus or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus or the Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Preliminary Prospectus or the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Preliminary Prospectus or the Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Representatives or Counsel to the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to The Company will make generally available to the Company's its security holders and to deliver to as soon as practicable but no later than 60 days after the Representatives close of the period covered thereby an earnings statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules and Regulations, covering a twelve-month period commencing after the "effective date" (including, at the option as defined in said Rule 158) of the Company, Rule 158)Registration Statement;
(g) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act of such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Securities Act or the Exchange Act or the respective applicable rules and regulations of the Commission thereunder;
(h) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hi) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities securities, real estate syndication or Blue Sky laws of such jurisdictions as the Representatives 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 Stock; 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 jurisdictionShares;
(ij) For a period of 180 days from the date of the Prospectus, not tothe Company (i) will not, directly or indirectly, (1) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exercisable or exchangeable for Common Stock Shares (other than (i) the StockShares, (ii) shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced abovehereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock Shares (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted hereinin compliance with the terms hereof; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain promptly its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters and to each of Cxxxxxxx Chance US LLP and Kxxx Xxxxxxx LLP, as counsel to the several Selling Stockholders, a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their requestrequest (but subject to Section 6(d) below), to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the Effective Date (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For At the request of the Representative, for a period of five three years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports stockholders and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder, other than materials that are promptly made available through the Commission’s Electronic Data Gathering Analysis and Retrieval System (“EXXXX”) or with respect to which the Company has requested confidential treatment from the Commission;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the ProspectusProspectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation or incentive plans existing on the date hereof or described in the Prospectus as existing as of the First Delivery Date, (iii) shares issued pursuant to currently outstanding options, warrants or rights and rights, or (iiiiv) shares of Common Stock issued as consideration or securities convertible into or exchangeable for the acquisition shares of one or more businesses provided that such Common Stock issued as consideration by the Company in exchange (either solely or together with other consideration) for assets or a majority and controlling portion of the equity of another person in connection with a merger or acquisition (each, a “Strategic Transaction”), provided that (A) such securities are not issued in a transaction pursuant to binding agreements or commitments that are entered into, or publicly announced, within 45 days of one or more businesses may not be resold the date of the Prospectus, (B) each recipient of such securities shall have furnished to the Representatives, prior to any such issuance, a Lock-Up Letter (as defined below) and (C) the expiration aggregate number of shares of Common Stock issuable by the Company in all such issuances shall not exceed (x) three percent (3%) of the 180-day period referenced aboveshares of Common Stock issued and outstanding immediately following the First Delivery Date hereunder in all such Strategic Transactions pursuant to binding agreements or commitments that are entered into, or publicly announced, no less than 45 days after the date of the Prospectus and (y) five percent (5%) of the shares of Common Stock issued and outstanding immediately following the First Delivery Date hereunder in all such Strategic Transactions pursuant to the foregoing clause (x) and any other Strategic Transactions pursuant to binding agreements or commitments that are entered into, or publicly announced, no less than 60 days after the date of the Prospectus (collectively the “Strategic Transaction Restrictions”)), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the grant issuance of options options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation or incentive plans existing on the date hereof or described in the Prospectus as existing as of the First Delivery Date, or (ii) the issuance of options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock in connection with a Strategic Transaction, subject to the Strategic Transaction Restrictions), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock (except as otherwise permitted in the foregoing clause (1)), whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Lxxxxx Brothers Inc. on behalf of the Underwriters; provided, however, notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 17-day period beginning on the last day of the Lock-Up Period, then the Lock-Up Period shall continue to apply until the expiration of the 17-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; and to cause (i) each executive officer and director of the Company, (ii) each Selling Stockholder and (iii) each stockholder of the Company holding shares that have not been registered under the Securities Act, but including shares registered under Form S-8 thereunder, representing (including securities convertible into or exchangeable for shares of Common Stock within 90 days of the date of the Prospectus) at least one percent (1%) of the shares of Common Stock outstanding immediately prior to the First Delivery Date to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (each , a “Lock-Up Letter”), pursuant to which each such person shall agree not to, directly or indirectly, except as permitted by the terms of such Lock-Up Letter, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Stock) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days, subject to a potential extension for up to 17 days, from the date of the Prospectus, without the prior written consent of Xxxxxx Lxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete that listingeffect such inclusion, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the ProspectusProspectus in all material respects; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; thereof to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent may not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed met by the Company’s reporting requirements pursuant to the Exchange Act and the rules and regulations of the Commission thereunder);
(g) For a period of five years following the Effective Date, other than information which is publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for or the acquisition of one or more businesses provided that such Common Stock issued as consideration for redemption rights described in the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveProspectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation equity-based incentive plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each officer and director and certain of the Company stockholders and each stockholder optionholders of the Company previously specified Company, who, collectively, hold at least 97%, of the Company’s outstanding shares of Common Stock immediately prior to the Company by Xxxxxx Brothers Inc. to furnish to the RepresentativesEffective Date (calculated on a fully-diluted, as-converted, as-exercised basis), prior to the First Delivery Date, a letter or letters, Lock Up Agreement in substantially the form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockExhibit A hereto;
(j) Prior to the Effective Date, to To apply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete effect that listingquotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of ” as such term under is defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunderthereunder after giving effect to the offering and sale of the shares of Stock and the application of the proceeds therefrom as described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (PRN Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under of the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriters and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriters an earnings statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years one year following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriters 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 Stock; 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 jurisdictionjurisdiction in which it is not otherwise subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; provided, that the Company may issue shares of Common Stock in connection with acquisitions of oil and gas properties or of companies the assets of which consist primarily of oil and gas properties; provided that in connection with such issuance, the recipients of such shares agree in writing to be bound by the foregoing restrictions of this Section 6(i) by executing and delivering to Xxxxxx Brothers Inc. a letter or letters substantially in the form of Exhibit A hereto; and to cause each shareholder, officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the RepresentativesUnderwriters, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel of Exhibit A hereto. Notwithstanding the foregoing, for the Underwriterspurpose of facilitating research coverage of the Company by the Underwriters and compliance with NYSE Rule 472 and NASD Rule 2711, pursuant to which each such person shall agree not to, directly or indirectly, if (1) offer for sale, sell, pledge during the last 17 days of the 180-day restricted period the Company issues an earnings release or otherwise dispose of (material news or enter into any transaction or device which is designed to, or could be expected to, result in a material event relating to the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock Company occurs or (2) enter into any swap or other derivatives transaction that transfers prior to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the final prospectus 180-day period, then the foregoing restrictions imposed by this letter shall not continue to apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon until the expiration of 210 days after the date 18-day period beginning on the issuance of the final prospectus earnings release or the foregoing restrictions shall expire as to all such shares occurrence of Common Stock;the material news or material event.
(j) Prior To take such action as shall be necessary to comply with the Effective Date, rules and regulations of the NYSE and to apply for maintain the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery DateNYSE;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(l) To timely complete all required filings and otherwise fully comply in a timely manner with all provisions of the Exchange Act, including the rules and regulations thereunder, in connection with the registration of the Stock thereunder;
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations thereunder;
(n) In connection with the Directed Share Program, to take such steps as are reasonably requested by Xxxxxxxxx & Company, Inc. to ensure that the Directed Shares will be restricted to the extent required by the NASD or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the Commission thereundereffectiveness of the Registration Statement, and Xxxxxxxxx & Company, Inc. will notify the Company as to which Directed Share Participants will need to be so restricted. At the request of Xxxxxxxxx & Company, Inc., the Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time; and
(o) To comply in all material respects with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities ActAct (including, without limitation, by filing further exhibits thereto), to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders securityholders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158), it being understood that such delivery requirement shall be deemed to be met by the Company's timely compliance with its reporting obligations pursuant to the Exchange Act and the rules and regulations promulgated thereunder;
(g) For a period of five three years following the Effective Date, other than information which is publicly available on the Commission's Electronic Data Gathering, Analysis and Retrieval System, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 StockShares; 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 or subject itself to taxation in respect of doing business in any jurisdictionjurisdiction in which it is not otherwise so subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (of, or enter into any transaction or device (including, without limitation, through the filing of a registration statement) which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) , any shares Common Shares or other capital stock of Common Stock the Company or securities convertible into or exchangeable for Common Stock Shares or other capital stock of the Company (other than (i) the Stock, issuance and sale of the Shares; (ii) the issuance of shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or (iii) pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for granted by the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveCompany), or sell or grant options, rights or warrants with respect to any shares Common Shares or other capital stock of Common Stock the Company or securities convertible into or exchangeable for Common Stock Shares or other capital stock of the Company (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or announce any intention to do any of the foregoing, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares Common Shares or other capital stock of Common Stockthe Company, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock Shares or other capital stock of the Company or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this section shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; and to cause each shareholder, officer and director of the Company and each stockholder of Schottenstein Stores Corporation, Cerberus Partners L.P. and Back Bay Capital Funding L.L.C., as holders of the Company previously specified to warrants issued by Retail Ventures as described in the Company by Xxxxxx Brothers Inc. Prospectus (the "WARRANTS") to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for of Exhibit A-1 hereto (in the Underwriterscase of all such persons other than Cerberus Partners L.P.) or Exhibit A-2 hereto(in the case of Cerberus Partners L.P.), pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exchangeable for Common Stock Shares, or announce any intention to do any of the foregoing, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockShares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock Shares or other securities, in cash or otherwise, in each case for a period of 180 days (subject to the proviso above) from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus Underwriters; The Company hereby undertakes to notify in writing each person who delivers a letter agreement in the form of Exhibit A hereto if at which any time the foregoing 180-day restricted period described above is extended for any reason described in such agreement. In addition, the Company will direct the transfer agent to place stop transfer restrictions shall not apply to oneupon any securities of the Company that are bound by such "lock-third up" agreements for the duration of the periods contemplated in such agreements, including any extensions thereof. For the avoidance of doubt, neither the issuance by Retail Ventures of the Warrants nor the exercise of such shares of Warrants by the holders thereof for Common Stock, and upon the expiration of 180 days after the date Shares of the final prospectus Company currently held by Retail Ventures during the foregoing restrictions restricted period described above shall not apply to an additional one-third constitute a violation of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;this provision.
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock Shares on the Nasdaq National Market System New York Stock Exchange, and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale offering of the Stock being sold by Shares and the Company Transactions as set forth in the Prospectus;
(l) In connection with the Directed Share Program, to ensure that the Directed Shares will be restricted to the extent required by the NASD or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement, and Xxxxxx Brothers Inc. will notify the Company as to which Directed Share Participants will need to be so restricted. At the request of Xxxxxx Brothers Inc., the Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time;
(m) To comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program; and
(mn) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder1940, as amended.
Appears in 1 contract
Samples: Underwriting Agreement (DSW Inc.)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives (which approval shall not be unreasonably withheld) and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Closing Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives in New York City such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement Agreement, the Indenture and any the computation of per share earnings); and (iiearnings),(ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto Securities and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(dc) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(ed) Prior to filing with the Commission any The Company will file no amendment to the Registration Statement or supplement to the Prospectus or to any document incorporated by reference in the Prospectus pursuant that shall have not been previously submitted to Rule 424 of the Representatives a reasonable time prior to the proposed filing thereof or to which the Representatives shall reasonably object in writing or which is not in compliance with the Securities Act and the Rules and Regulations, to furnish a copy thereof to Regulations or the Representatives and counsel for the Underwriters and obtain the consent provisions of the Representatives to the filingthis Agreement;
(fe) As soon as practicable after the Effective Date, to To make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(gf) For a period of five years following the Effective Date, upon request to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automatic quotation system upon which the Common Stock common stock of the Company may be listed or quoted pursuant to requirements of or agreements with such exchange or system or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hg) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably 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 Stock; provided Securities, except that in connection therewith the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation corporation, or to file execute a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants make an undertaking with respect to any shares the conduct of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.its business; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;and
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(lh) To apply the net proceeds from the sale of the Stock Securities being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Lci International Inc /Va/)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, and to notify the Underwriter promptly of such earlier time as may be required by Rule 430A(a)(3) under the Securities Actfiling; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;; and, in the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Stock by the Underwriter (and references herein to the “Registration Statement” shall include any such amendment or new registration statement).
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the Effective Time date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Representatives Underwriter and, upon their its request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424 of any document incorporated by reference in the Rules and RegulationsProspectus, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain the consent of the Representatives Underwriter to the filingfiling (which consent may not be unreasonably withheld).
(f) To pay the applicable Commission filing fees relating to the Stock within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein.
(g) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter.
(h) To file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) of the Rules and Regulations; to retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, file such document and prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(fi) As soon as practicable after the Effective DateDate and in any event not later than 16 months after the date hereof, to make generally available to the Company's ’s security holders and to deliver to the Representatives Underwriter an earnings earning statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations Regulations.
(including, at the option j) Until completion of the Company, Rule 158);
(g) For a period of five years following the Effective Datedistribution contemplated hereby, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;.
(hk) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 Stock; 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;.
(il) For a period of 180 45 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could reasonably be expected to, result in the disposition by any person the Company at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock or securities convertible into or exchangeable for Common Stock issued pursuant to stock option and purchase employee benefit plans, equity incentive plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) rights, shares of Common Stock issued as consideration for the pursuant to registration statements on Form S-4 in connection with acquisition transactions or earn-out obligations under acquisition transactions or shares of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration upon conversion of the 180-day period referenced above)Company’s 1.875% convertible senior notes due 2013 or the 4.0% convertible senior notes due 2014) or substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options or restricted stock units pursuant to stock option and purchase plans or other employee compensation equity incentive plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockStock or (3) make any demand for or exercise any right to file or cause to be filed a registration statement with respect to the registration of any share of Common Stock or securities convertible into or exchangeable for Common Stock (other than a registration statement on Form S-4 or S-8), whether any such transaction described in clause (1), (2) or (23) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; andUnderwriter.
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary Subsidiary shall become an "“investment company" within ” as defined in the meaning of such term under 1940 Act.
(n) Not to take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the Investment Company Act of 1940 and the rules and regulations stabilization or manipulation of the Commission thereunderprice of the shares of Common Stock (including the Stock) to facilitate the sale or resale of the Stock.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriters such number of the following documents as the Representatives Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding including consents and exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Preliminary Prospectus or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus or the Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Preliminary Prospectus or the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Underwriters and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Preliminary Prospectus or the Prospectus which will correct such statement or omission or effect such compliance.. The aforementioned documents 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;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Underwriters or Counsel to the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing;
(f) As soon as practicable after the Effective Date, to The Company will make generally available to the Company's its security holders and to deliver to as soon as practicable but no later than 60 days after the Representatives close of the period covered thereby an earnings statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules and Regulations, covering a twelve-month period commencing after the "effective date" (including, at the option as defined in said Rule 158) of the Company, Rule 158)Registration Statement;
(g) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Securities Act or the Exchange Act or the respective applicable rules and regulations of the Commission thereunder;
(h) For a period of five years following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock Series A Preferred Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(hi) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock Shares for offering and sale under the securities securities, real estate syndication or Blue Sky laws of such jurisdictions as the Representatives Underwriters 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 Stock; 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 jurisdictionShares;
(ij) For a period of 180 days from the date of the Prospectus, not tothe Company will not, directly or indirectly, (1) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than (i) the StockShares, (ii) shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for except in connection with the acquisition of one real property or more businesses provided that such Common Stock issued as consideration for the acquisition of one interests therein, including mortgage or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveleasehold interests), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the grant of options except pursuant to stock option customary compensation arrangements and purchase plans or other employee compensation plans existing on the date hereof ), or (2benefit plans) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with To maintain the Commission any reports on Form SR pursuant to Rule 463 listing of the Rules and Regulations, to furnish a copy thereof to Series A Preferred Shares on the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the CommissionNYSE;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither none of the Company nor any subsidiary Transaction Entities shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(m) The Company will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code; and
(n) If at any time during the 25-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your and the Company's opinion the market price of the Series A Preferred Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will consult with you concerning the substance of and the advisability of disseminating a press release or other public statement responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in no event later than 15 months after the Effective Date, ) to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder; and
(m) If necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Securities Act and to pay the filing fee with respect thereto.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to the Company shall make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.the
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Underwriters and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriters with copies thereof; to advise the RepresentativesUnderwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriters such number of the following documents as the Representatives each Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriters and, upon their request, to prepare and furnish without charge to each Underwriter the Underwriters and to any dealer in securities as many copies as the Representatives Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the RepresentativesUnderwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters and obtain the consent of the Representatives Underwriters to the filing, which consent shall not be unreasonably delayed or withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Underwriters, for a period of five (5) years following the Effective Date, to furnish to the Representatives Underwriters copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or market system upon which the Common Stock may be listed or included pursuant to requirements of or agreements with such exchange or market system or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Underwriters may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriters 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 StockShares; provided that in connection therewith therewith, the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For Except for the registration of securities pursuant to the exercise of registration rights granted to the holders of the Company's Subordinated Convertible Debentures due 2007, for a period of 180 365 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (ix) the StockSecurities, or (iiy) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) or upon conversion of shares of Common Stock issued as consideration for the acquisition of one Stock), or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above)substantially similar securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than the grant of options pursuant to stock option and purchase plans or other employee compensation benefit plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockXxxx Xxxx;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(k) During the period of 365 days from the date of the Prospectus, to obtain an executed letter substantially in the form of Exhibit A hereto from each new officer and director who has not previously executed such a letter;
(l) The Company will apply the net proceeds from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus;
(m) Prior to the First Closing Date, the Company will make all filings required to obtain the designation for inclusion of the Shares in the Nasdaq National Market and will effect and maintain such inclusion (or a listing on a national exchange registered under the Exchange Act) for at least five years from the date of this Agreement, including without limitation, compliance with all applicable corporate governance requirements thereof; provided, however, that nothing herein shall affect the Company's ability to sell assets or stock, merge, consolidate or be acquired by any person, and if as a result of any such sale, merger, consolidation, acquisition or similar transaction, the Company's Common Stock ceases to be publicly traded, this Section 5(m) shall terminate and cease to have further force or effect.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of the incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock;
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Securities 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 Securities Act, the Exchange Act, and the Rules and Regulations;
(p) For a period of five (5) years from the Closing Date, the Company shall furnish to the Underwriters at the Underwriters' request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company; and
(q) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Underwriters and counsel for the Underwriters, 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.
(r) For a period of five (5) years from the effective date of the Registration Statement, the Company shall nominate one individual selected by Xxxx Xxxx for election to the Board of Directors of the Company (the "Board"), if requested by Xxxx Xxxx, and shall solicit proxies in support of such nomination. If Xxxx Xxxx shall not have designated such an individual at the time of any meeting of the Board or such person shall not have been elected or shall be unavailable to serve, the Company shall notify Xxxx Xxxx of each such meeting. If an individual selected by Xxxx Xxxx is not serving on the Board, an individual selected by Xxxx Xxxx 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 further agrees to provide its outside directors with compensation as deemed appropriate by the Board and as customary for similar companies. The Company shall reimburse the designee to the Board of Xxxx Xxxx for his or her out-of-pocket expenses reasonably incurred in connection with his or her attendance at Board meetings.
(s) For a period of three (3) years from the effective date of the Registration Statement, the Company shall not directly or indirectly offer, sell, contract to sell, sell any option, grant any option, right or warrant for shares of the Company's Common Stock or securities exchangeable or exercisable for or convertible into shares of the Company's Common Stock to any of the Company's directors, officers or employees at a price less than the price per Share set forth in Section 2(a) without the prior written consent of Xxxx Xxxx.
(t) For a period of three (3) years from the effective date of the Registration Statement, the Company shall not effect a change in its accounting firm without the prior written consent of the Representatives, except that no consent is required if the new accounting firm is a "big four" accounting firm.
(u) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002, and will use its best efforts to cause the Company's trustees and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Further Agreements of the Company. The Company agreesagrees with the Underwriter:
(a) To prepare the Final Prospectus in a form approved by the Representatives Underwriter and to file such Final Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Final Prospectus except as permitted herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus or any amended Final Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Final Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or suspending any such qualification, to promptly use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Final Prospectus and any amended or supplemented Final Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Final Prospectus in order to comply with the Securities Act, to notify the Representatives Underwriter and, upon their its request, to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Final Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representativesreasonable judgment of the Underwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters Underwriter and obtain not file any such proposed amendment to which the consent of the Representatives to the filingUnderwriter reasonably objects;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a1l(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For Upon the request of the Underwriter, for a period of five two (2) years following the Effective Date, to furnish to the Representatives Underwriter copies of all materials furnished by the Company to its shareholders stockholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or market upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or market or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunderthereunder (except for such materials, reports and statements as are available on XXXXX);
(h) Promptly from time to time to take such action as the Representatives Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives Underwriter 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 StockShares; provided that in connection therewith therewith, the Company shall not be required to qualify as a foreign corporation corporation, to submit to general taxation or to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the ProspectusProspectus until January 21, 2006 (the "LOCK-UP PERIOD"), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or substantially similar securities (other than (ix) the StockShares, (iiy) shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and or (iiiz) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any up to 50,000 shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof substantially similar securities), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and the Underwriter. The Company agrees not to cause each officer and director accelerate the vesting of any option or warrant or the Company and each stockholder lapse of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, any repurchase right prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any expiration of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case Lock-Up Period without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUnderwriter;
(j) Prior to To not invest or otherwise use the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by Shares in the offering in such a manner as would require the Company to register as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission thereunder;
(k) During the Lock-Up Period, to obtain an executed letter in the form of Exhibit A hereto from each new officer and director who has not previously executed such a letter;
(l) The Company will apply the net proceeds received by it from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus;
(m) Prior to the First Closing Date, the Company will make all filings required to list the Company Shares on the Nasdaq National Market, subject only to official notice of issuance;
(n) The Company will maintain a Transfer Agent for its Common Stock; and
(o) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Underwriter, 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, except as required by applicable law, regulation or rule (including any regulation or rule of Nasdaq); provided in such case that the Company has delivered a copy of such press release or other communication to the Underwriter prior to such issuance.
Appears in 1 contract
Samples: Underwriting Agreement (Franklin Credit Management Corp/De/)
Further Agreements of the Company. The Company agreesagrees with the several Underwriters that:
(a) To The Company will prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and file the Rule 462(b) Registration Statement with the Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities ActAgreement; to make no further amendment or any supplement to the Registration Statement Statements or to the Prospectus except as permitted hereinto which the Representatives shall reasonably object by notice to the Company after a reasonable period (not less than two business days) to review unless the Company, after receipt of such objection, shall determine, based upon the advise of its outside counsel, that such amendment or supplement is required by law; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statements or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required If at any time prior to the expiration of nine months after the Effective Time in connection with the offering or sale effective date of the Initial Registration Statement when a prospectus relating to the Stock or is required to be delivered any other securities relating thereto and if at such time any events shall have occurred event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary time to amend or supplement the Prospectus in order to comply with the Securities Act, to the Company will promptly notify the Representatives and, thereof and upon their request, to request will prepare and an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of such amended or supplemented Prospectus; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine months or more after the effective date of the Initial Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus which as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will correct such statement or omission or effect such compliancefurnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of each of the Registration Statements as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) To file The Company will deliver promptly to the Representatives in New York City such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission any and each amendment to the Registration Statement, including any filing required under Rule 462(bthereto (in each case excluding exhibits), or (ii) each Preliminary Prospectus, and (iii) the Prospectus or any supplement to the Prospectus that may(not later than 10:00 A.M., in the judgment New York City time, of the Company business day following the execution and delivery of this Agreement) and any amended or supplemented Prospectus (not later than 10:00 A.M., New York City time, on the Representatives, be required by business day following the Securities Act date of such amendment or requested by the Commission;supplement).
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to The Company will make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the Company's security holders and to deliver to effective date of the Representatives Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);.
(gf) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the The Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly will promptly take from time to time to take such action actions as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request designate and to comply with continue such laws qualifications in effect for so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution of the Stock; provided that in connection therewith the Company and its subsidiaries shall not be required obligated to qualify as a foreign corporation corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;.
(g) During the period of five years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) For as soon as they are available, copies of all reports or other communications furnished to shareholders and (i) as soon as they are available, copies of any reports and financial statements furnished or filed with the Commission pursuant to the Exchange Act or any national securities exchange or automatic quotation system on which the Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose Prospectus without the prior written consent of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (SG Cowen other than (i) the Stock, (ii) Company's xxxx of the Stock hereunder and the grant of any stock option or stock option right or the issuance of shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and plans, employee stock purchase plans or other employee compensation plans existing as in existence on the date hereof or pursuant to currently outstanding options, warrants warrants, rights, convertible preferred stock or rights and (iii) convertible indebtedness; provided, however, that the Company may issue up to an aggregate of 956,278 shares of Common Stock issued as consideration for the acquisition of one in connection with entering into new product acquisitions or more businesses licensing arrangements, provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership recipient of such shares of Common StockStock enters into a lock-up agreement substantially in the form of Exhibit I hereto.
(i) The Company will supply the Representatives with copies of all correspondence to and from, whether and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(j) Prior to each of the Closing Dates, the Company will furnish to the Representatives, as soon as they have been prepared, copies of any such transaction described unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in clause the Registration Statement and the Prospectus.
(1k) or (2) above is Prior to be settled by delivery each of Common Stock the Closing Dates, the Company will not issue any press release or other securitiescommunication directly or indirectly or hold any press conference with respect to the Company, in cash its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in each case the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified), without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director the Representatives, unless in the judgment of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish its counsel, and after notification to the Representatives, prior to the First Delivery Date, a letter such press release or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which communication is designed to, or could be expected to, result in the disposition required by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;law.
(l) To Without limiting the provisions of Section 4(h) in connection with the offering of the Stock, until SG Cowen shall have notified the Compxxx xx the completion of the resale of the Stock, the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Stock, or attempt to induce any person to purchase any Stock; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to the Option Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 4(b).
(n) For at least one year from the date hereof, the Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect frxx xxxx xx xxxe.
(o) The Company will apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; andProspectus under the heading "Use of Proceeds".
(mp) To take such steps as shall be necessary to In connection with the Directed Share Program, the Company will ensure that neither the Directed Shares will be restricted to the extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three (3) months following the date of the effectiveness of the Registration Statement. The Designated Underwriter will notify the Company nor any subsidiary shall become an "investment company" within as to which Participants will need to be so restricted. The Company will direct the meaning transfer agent to place stop transfer restrictions upon such securities for such period of such term under time.
(q) The Company will pay all fees and disbursements of counsel incurred by the Investment Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(r) The Company Act of 1940 will comply with all applicable securities and the other applicable securities and other laws, rules and regulations of in each foreign jurisdiction in which the Commission thereunderDirected Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business 10:00 A.M., New York City time on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish provide the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, and (iii) any document incorporated by reference in the Prospectus (including exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange system, and copies of all reports filed by the Company with or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;and
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to director or employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc; and to cause each officer and director of the Company to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion quotation of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete seek approval of that listingapplication, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Arbor National Holdings Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); thereto, and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus the Prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in no event later than 15 months after the Effective Date), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director Inc. on behalf of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock for quotation on the Nasdaq National Market System and to use its best efforts to complete that listingeffect such quotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its commercially reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters Representatives a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsAgreement); , and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent may not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) (it being understood that such delivery requirements shall be deemed met by the Company's reporting requirements pursuant to the Exchange Act and the Rules and Regulations);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to file a take any action that would subject it to general consent to service of process or taxation in any jurisdictionjurisdiction in which it is not now so subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) (A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, stock option and purchase plans or other employee compensation plans and employee stock purchase plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or (B) sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or subsequently adopted by the Board of Directors of the Company), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. and Xxxxxxx, Sachs & Co., on behalf of the Underwriters; and to cause each executive officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for of Exhibit A hereto (the Underwriters"Lock Up Agreement"), pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus (the "Lock-Up Period"), without the prior written consent of Xxxxxx Brothers Inc.Inc. and Xxxxxxx, for a period of 150 days after the date Sachs & Co., on behalf of the final prospectus at which time Underwriters; provided, however, that nothing in the foregoing restrictions Lock-Up Agreement is intended to, or shall not apply prevent, the executive officers or directors from (i) transferring any shares, options or warrants to oneany family members or affiliates or for estate planning purposes, provided that (A) the transferee agrees in writing to be bound by the terms of the Lock-third of such shares of Common StockUp Agreement, and upon (B) such transfer does not require the expiration of 180 days after the date transferee to make a filing under Section 16 of the final prospectus Securities Exchange Act of 1934 reflecting such transfer with the foregoing restrictions Securities and Exchange Commission during the Lock-Up Period, (ii) putting in place a so-called "10b-5-1 plan" or setting up a brokerage account, provided no sales shall not apply be made thereunder prior to an additional one-third the end of the Lock-Up Period, or (iii) exercising any options or warrants held by the undersigned, provided that any shares of Common Stock so owned as of issued shall be subject to the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;Lock-Up Agreement.
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System New York Stock Exchange and to use its commercially reasonable best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary of its subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder1940, as amended.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's ’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; 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 the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and , (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and (iii) any document incorporated by reference in the Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.; provided, however, with respect to information incorporated by reference in the Prospectus, the Company shall not be obligated to furnish any materials that have been filed with the Commission by electronic transmission pursuant to EXXXX;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's ’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that the Company shall not be required to provide the Representatives with any such reports or similar forms that have been filed with the Commission by electronic transmission pursuant to EXXXX;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Lxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each Selling Stockholder, officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUnderwriters;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "“investment company" within the meaning of such term under ” as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder;
(k) Not to take, directly or indirectly, any action which is designed to stabilize or manipulate, or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation, of the price of any security of the Company in connection with the offering of the Stock; and
(l) To comply, in all material respects, with the Sarbanes Oxley Act of 2002.
Appears in 1 contract
Samples: Underwriting Agreement (Startek Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives Lead Managers and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Lead Managers with copies thereof; to advise the RepresentativesLead Managers, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Lead Managers and to counsel for the Underwriters International Managers a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Lead Managers such number of the following documents as the Representatives Lead Managers shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of earnings per share earnings); share) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Lead Managers and, upon their request, to prepare and furnish without charge to each Underwriter International Manager and to any dealer in securities as many copies as the Representatives Lead Managers may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesLead Managers, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives Lead Managers and counsel for the Underwriters International Managers and obtain the consent of the Representatives Lead Managers to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives Lead Managers an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three years following the Effective Date, to furnish to the Representatives Lead Managers copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives Lead Managers may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Lead Managers 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the International Stock, (ii) the U.S. Stock and shares of Common Stock issued pursuant to stock option and purchase employee benefit plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director person that, as of the Company date of this Agreement (i) is a recordholder of Common Stock or (ii) has the right to acquire shares of Common Stock upon conversion, reclassification, exchange or exercise of another security, which right will occur or may be fully vested and each stockholder exercisable within 180 days of this Agreement (excluding the Company previously specified right to acquire shares of Common Stock pursuant to the Company by Xxxxxx Brothers Inc. CTSH All Employee Plan and the CTSH Bonus Share Plan, each as defined in the Prospectus) to furnish to the RepresentativesLead Managers, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory substantially similar to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, Exhibit A attached hereto (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in substantially identical to Exhibit A to the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockU.S. Underwriting Agreement);
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters International Managers and receive and consider its comments thereon, and to deliver promptly to the Representatives Lead Managers a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(mk) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the U.S. Investment Company Act of 1940 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.
Appears in 1 contract
Samples: International Underwriting Agreement (Crown Castle International Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or a supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), or the Prospectus Statement or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, such consent not to be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter OR, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company's fiscal year, 455 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its any subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the Nasdaq Stock Market or the principal national securities exchange upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with Nasdaq or such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably 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 StockShares; provided 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge contract to sell, pledge, hedge or otherwise dispose dispose, directly or indirectly, of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exchangeable for Common Stock Shares (other than (i) the Stock, (ii) Shares and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock Shares or securities convertible into or exchangeable for Common Stock Shares (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockShares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock Shares or other securities, in cash or otherwise, or (3) publicly disclose an intention to make any such offer, sale, pledge, hedge, swap or other transaction, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Shares or securities convertible into or exchangeable for Common Stock Shares or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockShares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock Shares or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockInc;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on Shares in the Nasdaq National Market System of the Nasdaq Stock Market and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports its initial Report on Form SR pursuant to 10-Q containing the information specified in Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters at a reasonable time prior to filing such report with the Commission, and receive and consider its comments thereon, which will be provided promptly to the Company, and to deliver promptly to the Representatives a signed copy of each report such Report on Form SR 10-Q filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare a Prospectus including the Prospectus Rule 430A Information in a form approved by the Representatives Representative and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended or supplemented Prospectus has been filed and to furnish the Representatives Representative with copies thereof; to advise the RepresentativesRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives Representative and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives Representative such number of the following documents as the Representatives Representative shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives Representative and, upon their its request, to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives Representative may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and 1933 Act Regulations, to furnish a copy thereof to the Representatives Representative and counsel for the U.S. Underwriters and obtain the consent of the Representatives Representative to the filing;
(f) As soon Timely file such reports pursuant to the U.S. Securities Exchange Act of 1934, as practicable after amended (the Effective Date, "Exchange Act") as are necessary in order to make generally available to the Company's security holders and to deliver to the Representatives its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158)Act;
(g) For a period of five years following the Effective DateTime, to furnish to the Representatives Representative copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;; and
(h) Promptly from time to time to take such action as the Representatives Representative may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives Representative 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 Stock; provided 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Representatives of such filing; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and Commission, each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations, Regulations or any Rule 462(b) Registration Statement to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(acomplying
(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its public shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Representatives 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 Stock; provided provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to file execute a general consent to service of process in any jurisdictionjurisdiction in any action other than one arising out of the offering or sale of the Stock;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) the International Stock, the PInES, the Mandatorily Convertible Preferred Stock, the Seller Depositary Shares, the Seller Convertible Redeemable Preferred Stock, shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights or upon the conversion of the Seller Convertible Redeemable Preferred Stock or the Mandatorily Convertible Preferred Stock, and (iii) other than shares of Common Stock issued by the Company as consideration for to any seller of assets or stock that the acquisition Company or any of one the Subsidiaries is acquiring, provided that any shares so issued to such seller or more businesses sellers, including any shares issued after the date of the Prospectus pursuant to the Walibi Acquisition or the Walibi Tender Offer, in the aggregate, do not exceed one-fifth of the total equity of the Company outstanding at the time of the first such issuance, and further provided that such Common Stock issued seller or sellers (other than the sellers of Walibi) contemporaneously with any such issuance or issuances enter into an agreement with the Representatives in substantially the same form as consideration the agreement described in this paragraph (i) for the acquisition of one or more businesses may not be resold prior to the expiration remainder of the 180-90 day period referenced aboveperiod), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), hereof) or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder Hanseatic Corporation, Richland Ventures, L.P., Richland Ventures II, L.P., Lawrence, Tyrrell, Xxxxxx & Smith, Lawrence, Xxxxxxx, Xxxxxx & Xxxxx II, L.P., Windcrest Partners, [JG Partnership, Ltd.,] [J. Xxxxx Xxxxxxx] and Xxxxxx X. Xxxxxxx (in the case of the Company previously specified Xxxxxx X. Xxxxxxx only, limited to the Company (A) shares held for his own account and (B) shares beneficially owned by Xxxxxx Brothers Inc. Lexfor Corporation) to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1iii) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for Common Stock or (2iv) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1iii) or (2iv) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this Agreement on behalf of each of the Six Flags Subsidiaries on the First Delivery Date;
(l) Not to waive the lock-up agreements executed by the Sellers in connection with the Six Flags Acquisition whereby each of the Sellers agreed to not sell any Seller Convertible Redeemable Preferred Stock (or shares of Common Stock issuable upon conversion thereof) during the period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.; and
(m) To make an offer to purchase the SFTP Senior Subordinated Notes following the Six Flags Acquisition in accordance with the provisions of the indenture for the SFTP Senior Subordinated Notes relating to offers to purchase the SFTP Senior Subordinated Notes upon a change of control of SFTP.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives a conformed copy and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective DateDate (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective DateDate and to the extent reasonably requested by the Representatives, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and rights, or (iii) shares issued in connection with an acquisition by the Company of Common Stock issued as consideration for another corporation or entity or in a private placement by the acquisition Company of one shares to a strategic partner or more businesses investor, provided that the individuals or entities to whom such Common Stock shares are issued as consideration for the acquisition of one or more businesses may not be resold prior agree to the expiration of the 180lock-day period referenced aboveup provided in this Section 6(i)), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options or issuances of shares or rights pursuant to option or employee stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. Selling Stockholder to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree agree, subject to the exceptions set forth in the form of lock-up agreement previously agreed to by the Company and the Representatives, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary its Subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company agreescovenants and agrees with each U.S. Underwriter:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under of the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the U.S. Underwriters a signed an executed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); Agreement) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each U.S. Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company Company, the Selling Stockholders or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally security holders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange or automated quotation system upon which the Common Stock Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act Act, or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;to
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (other than the issuance of shares of Common Stock upon the exercise of currently outstanding options or options to be granted on the First Delivery Date as described in the Prospectus) or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) shares of Common Stock issued pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof ), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to (other than the Company by Xxxxxx Brothers Inc. Selling Stockholders) and each Named Executive Officer (as such term is defined in the Prospectus) to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersattached hereto as Exhibit A, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Lehmxx Xxxthers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion of the Stock Shares on the Nasdaq National Market System NYSE and to use its best efforts to complete that listinginclusion, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date, and to take such action as shall be necessary to comply with the rules and regulations of the NYSE with respect to such Shares;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock Shares being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary the Subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder; and
(m) To timely complete all required filings and otherwise fully comply in a timely manner with all provisions of the Exchange Act, including the rules and regulations thereunder, in connection with the registration of the Shares thereunder.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Iri International Corp)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld;
(f) As soon as practicable after the Effective Date (but in no event later than 15 months after the Effective Date), to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For Without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Representatives, whether directly or indirectly, for a period of 180 120 days from subsequent to the date of the Prospectus, not to, directly or indirectly, to (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase or equity plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not tothat without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Representatives, whether directly or indirectly, for a period of 120 days subsequent to the date of the Prospectus, not to (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (other than the Stock and shares issued pursuant to employee benefit plans, qualified stock option or equity plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;.
(j) Prior to the Effective Date, to apply for the inclusion of the Stock for quotation on the Nasdaq National Market System and to use its best efforts to complete that listingeffect such quotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earningsexhibits); and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented ProspectusProspectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the RepresentativesRepresentative, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; provided provided, however, 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;
(i) For a period of 180 90 days from the date of the Prospectus, not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) file or cause to be filed a registration statement on Form S-8 or other similar form with respect to any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company, in each case without the prior written consent of Xxxxxx Lehman Brothers Inc.Inc. and SG Cowen Securities Corporation on behalf of xxx Xxderwriters; and to cause xxxxx xxch stockholder and optionholder listed on Schedule 2 hereto, each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1i) or (2ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Lehman Brothers Inc., for a period Inc. and SG Cowen Securities Corporation on behalf of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stockxxx Xxderwriters;
(jx) Prior to the Effective Date, to apply Xx xpply for the inclusion of the Stock on the Nasdaq National Market System System, and to use its best efforts to complete effect that listingquotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and;
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under as defined in the Investment Company Act of 1940 1940, as amended and the rules and regulations of the Commission thereunder;
(m) To endeavor to qualify the Stock for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request, 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;
(n) The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Common Stock; and
(o) During the Prospectus Delivery Period, the Company shall file all documents required to be filed with the Commission and the Nasdaq National Market pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
Appears in 1 contract
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, 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 Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any the computation of per share earnings); ) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders generally and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares of Common Stock issued as consideration for the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboverights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.; and to cause each officer officer, director and director existing shareholder of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common Stock;
(j) Prior to the Effective Date, to apply for the inclusion listing of the Stock on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Pemstar Inc)
Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) 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 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any Rule 462(b) Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewiththerewith and all documents incorporated by reference therein upon request;
(c) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement, including any Rule 462(b) Registration Statement, Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and any computation of per share earnings); exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.;
(d) To file promptly with the Commission any amendment to the Registration Statement, including any filing required under Rule 462(b), Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which shall not be unreasonably withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company's security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five three years following the Effective Date, to furnish to the Representatives (i) copies of all materials furnished by the Company to its shareholders generally stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder, (ii) upon request from the Underwriters, copies of the publicly available reports filed by the Bank with the Bank Regulatory Authorities and (iii) such other publicly available information as the Underwriters may reasonably request regarding the Company and/or its subsidiaries;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Representatives 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 Stock; 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 jurisdictionjurisdiction in which it is otherwise not subject;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) the Stock, (ii) Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option and purchase plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, convertible securities, warrants or rights and (iii) shares of Common Stock issued rights, in each case as consideration for described in the acquisition of one or more businesses provided that such Common Stock issued as consideration for the acquisition of one or more businesses may not be resold prior to the expiration of the 180-day period referenced aboveRegistration Statement), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to stock option and purchase plans or other employee compensation plans existing on the date hereof hereof), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc.Inc. on behalf of the Underwriters; and to cause each officer and director of the Company and each stockholder of the Company previously specified to the Company by Xxxxxx Brothers Inc. to furnish to the Representatives, prior to the First Delivery Date, a lock-up letter or letters, substantially in the form and substance satisfactory to counsel for the Underwritersof Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc., for a period of 150 days after the date Inc. on behalf of the final prospectus at which time the foregoing restrictions shall not apply to one-third of such shares of Common Stock, and upon the expiration of 180 days after the date of the final prospectus the foregoing restrictions shall not apply to an additional one-third of the shares of Common Stock so owned as of the date of the final prospectus, and upon the expiration of 210 days after the date of the final prospectus the foregoing restrictions shall expire as to all such shares of Common StockUnderwriters;
(j) Prior to the Effective Date, to To apply for the inclusion listing of the Stock on the Nasdaq National Market System Nasdaq, and to use its best efforts to complete that listing, subject only to official notice of issuanceissuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, to furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and to deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission;
(l) To apply the net proceeds from the issuance and sale of the Stock being sold by the Company as set forth in the Prospectus; and
(ml) To take such steps as shall be necessary to ensure that neither the Directed Stock sold pursuant to the Directed Share Program will be restricted to the extent required by the NASD or the rules of such association from sale, transfer, assignment, pledge or hypothecation for a period of 180 days following the date of the effectiveness of the Registration Statement, and Xxxxxx Brothers Inc. will notify the Company nor any subsidiary shall become an "investment company" within as to which Directed Share participants will need to be so restricted. At the meaning request of Xxxxxx Brothers Inc., the Company will direct the transfer agent to place stop transfer restrictions upon such term under the Investment Company Act securities for such period of 1940 and the rules and regulations of the Commission thereundertime.
Appears in 1 contract
Samples: Underwriting Agreement (Texas Capital Bancshares Inc/Tx)
