Further Agreements of the Company. The Company covenants and agrees with Underwriter: (a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. (b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object. (c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object. (d) Not to take any action that would result in the 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. (e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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. (f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject. (h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.” (j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC. (k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Boston Properties LTD Partnership), Underwriting Agreement (Boston Properties Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Representatives with copies thereof; to advise the Representatives, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably objectexhibits filed therewith.
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (A) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) under each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus, and (C) each Issuer Free Writing Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the date hereof in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representatives may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Prospectus that will notcorrect such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement or 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 or supplement to the Registration Statement or the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, and not to file any such amendment or supplement to which the Representatives reasonably object.
(f) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(g) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. 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 when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities statement or Blue Sky laws of omission or effect such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectcompliance.
(h) To As soon as practicable after the Effective Date (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 after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Representatives (or make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Commission thereunderCompany, Rule 158 under the Securities Act).
(i) The 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 or Blue Sky laws of Canada and such other 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 will shall not be required to (i) qualify as a foreign corporation 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 such jurisdiction; or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(j) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device 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 exercisable or exchangeable for Common Stock (other than the Stock and shares of Common Stock and securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the most recent Preliminary 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 employee benefit plans, option plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the most recent Preliminary Prospectus), (B) 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 (A) or clause (B) is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of 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 (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc., on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(k) If Barclays Capital Inc., in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement for an officer, director or stockholder of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by issuing a press release substantially in the form of Exhibit B hereto, and containing such other information as Barclays Capital Inc. may require with respect to the circumstances of the release or waiver and/or the identity of the officer(s), director(s) or stockholder(s) with respect to which the release or waiver applies, through a major news service at least two business days before the effective date of the release or waiver.
(l) To apply the net proceeds from the sale of the Securities Stock being sold by the Company substantially in accordance with the description as described set forth in the Prospectus under the heading caption “Use of Proceeds.”
(jm) The Company will cooperate To file with the Underwriter in arranging for Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities to be eligible for clearance and settlement through DTCAct.
(kn) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission pursuant to Section 13(ain compliance with Rule 462(b) under the Securities Act by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b), 13(c), 14 or 15(d) of the Exchange Act.
Appears in 2 contracts
Samples: Underwriting Agreement (ANTERO RESOURCES Corp), Underwriting Agreement (ANTERO RESOURCES Corp)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Rule 430A under Prospectus relating to the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d424(b) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that Rules and Regulations not later than the Underwriter otherwise would not have been required to file thereunder.
(e) If close of business on the Time of Sale Prospectus is being used to solicit offers to buy second business day following the Securities at a time when the Prospectus is not yet available to prospective purchaser execution and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light delivery of the circumstances, 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 it is necessary Terms Agreement; and to amend or supplement the Time of Sale Prospectus to comply with applicable law forthwith to prepare, timely file with the Commission and furnishduring any period in which, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time reasonable opinion of Sale counsel for the Representatives, any Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus Securities, all documents (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, amendments to previously filed documents) 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;
(b) During the period beginning on the Applicable Time and ending on the later of the Delivery Date or such date, as in the reasonable opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), to advise the Representatives, promptly after it receives notice thereof, of (i) the time when any post-effective amendment to the 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 such number of copies thereof as the Representatives may reasonably request; (ii) the issuance by the Commission of any stop order or of any order preventing or suspending, or any notice objecting to, the use of any Preliminary Prospectus or the Prospectus, the suspension of the qualification of the Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for any such purpose; (iii) any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus (including any document incorporated therein by reference) or for additional information;
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the Disclosure Package or the Prospectus in order to comply with the Securities Act, the Company agrees to (i) notify the Representatives of any such event or condition, (ii) promptly prepare any such amendment, supplement or document and furnish to the Representatives, a reasonable amount of time prior to the proposed filing, copies thereof and the opportunity to comment and (iii) promptly file with the Commission (and use its commercially reasonable efforts to have any amendment to the Registration Statement or any new registration statement declared or otherwise become effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances then prevailing or under which they were made, as the case may be, not misleading or to effect such compliance with the Securities Act;
(d) To prepare a final term sheet containing only a description of the Securities, in a form approved by the Representatives and attached as Annex B to the Terms Agreement, and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”); any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement;
(e) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Rules and Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules and Regulations;
(f) In the event of the issuance of any stop order or of any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or suspending any such qualification, to make every reasonable effort to obtain its withdrawal;
(g) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, a copy of each Preliminary Prospectus, the Prospectus and Issuer Free Writing Prospectus filed with the Commission, including all supplements thereto and all documents incorporated therein by reference, and all consents and exhibits filed therewith;
(h) 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 as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than the computation of the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and (iii) any documents incorporated by reference in the Prospectus;
(i) To file promptly with the Commission any amendment to the Registration Statement, any Preliminary Prospectus 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;
(j) As soon as practicable, to make generally available to the Company’s security holders and to deliver to the Representatives an 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) covering the period beginning not later than the first day of the fiscal quarter next following each date which (i) under Section 11(a) of the Securities Act and the Rules and Regulations is an “effective date” (as defined in Rule 158) of the Registration Statement for purposes of said Section 11(a) and (ii) is not later than the Delivery Date;
(k) For one year after the Delivery Date, to furnish to the Representatives, as they may reasonably request, and, upon request, to each of the Underwriters, if any, as soon as practicable after the end of each fiscal year, such number of copies as the Representatives shall reasonably request of all materials furnished by the Company to its stockholders and all public reports and all reports and financial statements furnished by the Company to any national securities exchange 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 from time to time, such other information concerning the Company as the Representatives may reasonably request;
(l) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the 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 Securities; 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 or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or subject itself to liability or expense which is disproportionate to the benefit to be realized by so qualifying the Securities in such jurisdiction;
(m) During the period beginning on the date of the Terms Agreement and continuing to the Delivery Date, not to offer or sell, or cause to be offered and sold without the prior consent of the Representatives, any debt securities which are substantially similar to the Securities; and
(n) Promptly from time to time to take all reasonable action necessary to enable S&P Global Ratings and its successors (“S&P”), and Xxxxx’x Investors Service, Inc. and its successors (“Moody’s”), as applicable, to provide their respective credit ratings of the Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Marriott International Inc /Md/), Underwriting Agreement (Marriott International Inc /Md/)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Representatives with copies thereof; to advise the Representatives, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably objectexhibits filed therewith.
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (A) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) under each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the date hereof in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus that 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 or the Prospectus so that may, in the statements 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 or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, and not to file any such amendment or supplement to which the Representatives reasonably object.
(f) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(g) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as so a result of which any Issuer Free Writing Prospectus, as then amended or supplemented will notsupplemented, 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 when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities statement or Blue Sky laws of omission or effect such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectcompliance.
(h) To As soon as practicable after the Effective Date (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 after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Representatives (or make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Commission thereunderCompany, Rule 158 under the Securities Act).
(i) The Company will apply Promptly from time to time to take such action as the net proceeds from Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other 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 Securities Stock; provided that in connection therewith the Company shall not be required to (i) qualify as described a foreign corporation in the Prospectus under the heading “Use any jurisdiction in which it would not otherwise be required to so qualify; (ii) file a general consent to service of Proceedsprocess in any such jurisdiction; or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.”
(j) The Company will cooperate For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device 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 exercisable or exchangeable for Common Stock (other than the Stock and shares of Common Stock and securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the most recent Preliminary 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 Underwriter grant of options pursuant to employee benefit plans, option plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in arranging for the Securities most recent Preliminary Prospectus), (B) 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 (A) or clause (B) is to be eligible for clearance settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of 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 (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, and settlement through DTCto cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(l) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement.
(m) Except as disclosed in the most recent Preliminary Prospectus, the Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(n) The Company will file promptly do and perform all reports and any definitive proxy things required or information statements, if any, required necessary to be filed done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Company with Underwriters’ obligations hereunder to purchase the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActStock.
Appears in 2 contracts
Samples: Underwriting Agreement (ANTERO RESOURCES Corp), Underwriting Agreement
Further Agreements of the Company. The Company covenants and agrees with Underwriterto use its commercially reasonable efforts:
(a) The Company will comply To prepare any registration statement or prospectus, if and to the extent required by applicable law, in connection with the requirements of Rule 430A under Remarketing, in a form reasonably acceptable to the Remarketing Agent, and to file any such prospectus pursuant to the Securities Act or Rule 430B under within the Securities Actperiod required by the Rules and Regulations; to advise the Remarketing Agent, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish the Remarketing Agent with copies thereof; to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Remarketed Convertible Preferred Shares; to advise the Remarketing Agent, 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 the Prospectus, of the suspension of the qualification of any shares of the Remarketed Convertible Preferred 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 Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish or make available promptly to the Remarketing Agent and to counsel for the Remarketing Agent a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver or make available promptly to the Remarketing Agent in New York City a reasonable number of the following documents: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto, (ii) the Prospectus and any amended or supplemented Prospectus, (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto) and (iv) any Remarketing Materials; and, if the delivery of a prospectus is required at any time in connection with the Remarketing and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary 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 during such same period 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 Remarketing Agent and, upon its request, to file such document and to prepare and furnish without charge to the Remarketing Agent and to any dealer in securities a reasonable number of copies 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 or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Remarketing Agent, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish or make available a copy thereof to the Remarketing Agent and counsel for the Remarketing Agent; and not to file any such amendment or supplement which shall be disapproved by the Remarketing Agent promptly after reasonable notice (approval thereof not to be unreasonably withheld).
(f) As soon as practicable after the Effective Date of the Registration Statement, to make generally available to the Company's security holders and to deliver to the Remarketing Agent 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) During a period of five years following the Effective Date of the Registration Statement (or until no Convertible Preferred Shares are outstanding, if earlier), to deliver or make available to the Remarketing Agent copies of all reports or other communications (financial or other) furnished to shareholders of the Company (except to the extent available through the Commission's XXXXX System) , and deliver to the Remarketing Agent, (i) as soon as they are available, copies of any reports and financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any of the Remarketed Convertible Preferred Shares or any class of securities of the Company may be listed (except to the extent available through the Commission's XXXXX System); and (ii) such additional information concerning the business and financial condition of the Company as the Remarketing Agent may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to the Company's shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the Remarketing Agent may reasonably request to qualify any shares of the Remarketed Convertible Preferred Shares for offering and sale under the securities laws of such jurisdictions as the Remarketing Agent 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 Remarketed Convertible Preferred Shares; provided that in connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Rule 430A under Commission on the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to date hereof; prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Representative and file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act not later than the second business day following the execution and will take such steps as delivery of this Agreement; make no further amendment or any supplement to the Registration Statements or to the Prospectuses to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; advise the Representative, promptly after it deems necessary receives notice thereof, of the time when any amendment to ascertain either Registration Statement has been filed or becomes effective or any supplement to the Prospectuses or any amended Prospectuses have been filed and to furnish the Representative with copies thereof; advise the Representative, promptly whether after it receives notice thereof, of the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing issuance by the BCSC or the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectuses or the Prospectuses, of the suspension of the qualification of the 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 BCSC or the Commission, as the case may be, for the amending or supplementing of the Registration Statements or the Prospectuses or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any of the Preliminary Prospectuses or the Prospectuses or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Shares is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representative thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach Underwriter and to any dealer in securities as many copies as the Representative 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 Shares nine months or more after the effective date of the Initial Registration Statement, file the Company upon the request of the Representative and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to the Representative 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 deliver promptly to the Representative in New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and furnish, at its own expense, to the Underwriter and to the dealers each amendment thereto (whose names and addresses you will furnish to the Companyin each case excluding exhibits); (ii) to which Securities may have been sold by you on behalf each of the Underwriter Preliminary Prospectuses; (iii) the Prospectuses (not later than 10:00 A.M., New York time, of the business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectuses (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement); and (iv) any document incorporated by reference in the light Prospectuses (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representative may reasonably request to qualify the Securities Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representative may designate and to continue such qualifications in effect for so long as required for the distribution of the Shares; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations (or other foreign entities) in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectjurisdiction.
(g) During the period of three years from the date hereof, the Company will deliver to the Representative (i) as soon as they are available, copies of all reports or other communications furnished to shareholders 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, filed in Canada through the System for Electronic Document Analysis and Retrieval (SEDAR), or any national securities exchange or automatic quotation system on which the Shares are listed or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering sell, or otherwise dispose of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares for a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act Shares hereunder and the rules issuance of shares pursuant to employee benefit plans, qualified option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights. The Company will cause each officer, director and regulations shareholder listed in Schedule C to furnish to the Representative, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares for a period of 180 days from the date of the Commission thereunderProspectuses, without the prior written consent of XX Xxxxx.
(i) The Company will supply the Representative with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act, or the BCSC in connection with the filing of the Canadian Prospectus.
(j) Prior to each of the Closing Dates the Company will furnish to the Representative, 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 Statement and the Prospectuses.
(k) Prior to each of the Closing Dates, except for routine communications in the ordinary course of business and consistent with the past practices of the Company, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects, without the prior written consent of the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law or by an applicable stock exchange.
(l) In connection with the offering of the Shares, until XX Xxxxx shall have notified the Company of the completion of the resale of the Shares, 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 Shares, or attempt to induce any person to purchase any Shares; 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 Shares.
(m) The Company shall comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act at all times after the effectiveness of such provisions.
(n) The Company will apply the net proceeds from the sale of the Securities Shares as described set forth in the Prospectus Prospectuses under the heading “"Use of Proceeds".”
(jo) The Company will cooperate with use its best efforts to ensure that the Underwriter in arranging for Company's common shares remain listed on the Securities to be eligible for clearance Toronto Stock Exchange and settlement through DTCthe American Stock Exchange.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Lions Gate Entertainment Corp /Cn/)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus Supplement in a form approved by the Representatives and file such Prospectus Supplement pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; make no further amendment to the Registration Statements or any supplement to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Supplement and for so long as the delivery of a prospectus or a prospectus supplement 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the date of the Prospectus Supplement when a prospectus or a prospectus supplement relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus or to make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act in order to ensure that the Prospectus complies with the Securities Act, the Company will promptly notify the Representatives thereof and upon their request will promptly prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 or a prospectus supplement relating to the Stock nine months or more after the date of the Prospectus Supplement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and each amendment thereto (in each case excluding exhibits), (ii) each Preliminary Prospectus and Preliminary Prospectus Supplement, (iii) the Prospectus Supplement (not later than 10:00 A.M., New York time, of the business day following the execution and delivery of this Agreement), (iv) 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 (v) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (as defined in Rule 158(c) under the Securities Act) 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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign 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) 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 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 90 days from the date of the Prospectus Supplement (the “Lock-Up Period”) without the prior written consent of CSFB and XX Xxxxx other than the Company’s sale of the Stock hereunder and the issuance of shares pursuant to (i) employee benefit plans, equity incentive plans or other employee compensation plans as in existence on the date hereof and as described in the Prospectus or (ii) currently outstanding options, warrants or rights; provided, however, that if (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless CSFB and XX Xxxxx waive, in writing, such extension. The Company will cause each officer, director and stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit A hereto.
(i) The Company will supply the Representatives or their counsel 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified in advance), without the prior written consent of the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until CSFB or 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 Common Stock, or attempt to induce any person to purchase any Common 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 Common 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) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Anadys Pharmaceuticals Inc)
Further Agreements of the Company. The Trust and the Company covenants and agrees with Underwriteragree:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements 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 and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to provide the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, To furnish promptly to furnish to you Xxxxxx Brothers Inc. a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Primary Registration Statement in connection with the offering or sale of the Capital Securities (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s security holders of Capital Securities and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Commission thereunder.Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives (i) The copies of all materials furnished by the Company will apply the net proceeds from the sale to its shareholders generally, (ii) copies of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance all public reports and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy financial statements furnished by the Company to the principal national securities exchange or information statementsautomated quotation system upon which the Company's Common Stock may be listed or quoted pursuant to requirements of or agreements with such exchange or system, if any, required to be (iii) copies of all reports filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 the Exchange Act or 15(d) any rule or regulation of the Exchange ActCommission thereunder 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 may reasonably request to qualify the Capital 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 Capital Securities; 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) During the period beginning from the date of this Agreement and continuing to and including the earlier of (i) the termination of trading restrictions on the Capital Securities, as communicated to the Company by the Representatives, and (ii) 90 days following the Closing Date, the Trust and the Company will not offer, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities, without the consent of Xxxxxx Brothers Inc., on behalf of the Representatives.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is (in the judgment of the Company or in the opinion of counsel to the Underwriters) the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their reasonable request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company, upon the reasonable request of any of the Representatives and at the expense of such Underwriter, will prepare promptly an amended or supplemented Prospectus as 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 (and not including any exhibits incorporated by reference).
(d) 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 Statements as originally filed with the Commission and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than twelve months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or file with the Company’s security holders and to you as soon as practicable an earning Commission a registration statement covering under the Securities Act relating to, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or to be in existence after the Effective Date as described in the Prospectus, or pursuant to currently outstanding options, warrants or rights. The Company will cause each officer, director and regulations shareholder listed in Schedule C to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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 Commission thereunderProspectus, without the prior written consent of XX Xxxxx.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, neither the Company nor its subsidiaries will issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 shall at all times during the period commencing on the First Closing Date and ending nine months thereafter comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will, or will cause the Selling Stockholders to, pay all fees and disbursements of counsel (including local counsel) incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(r) The Company will cooperate comply with all applicable securities and other applicable securities and other laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(ks) The Company will file promptly all reports shall manage its affairs and any definitive proxy or information statements, if any, required investments in such a manner as not to be filed by or become an "investment company" within the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) meaning of the Exchange ActInvestment Company Act and the rules and regulations thereunder.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; advise the Representative, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representative 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Representative, 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 Representative 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 Representative and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will furnish promptly to the Representative 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) The Company will deliver promptly to the Representative in New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (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 City time, on the business day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) The Company will make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the effective date of the 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).
(f) The Company will promptly take from time to time such actions as the Representative may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction; 11
(g) During the period of five years from the date hereof, the Company will deliver to the Representative and, upon request, to each of the other Underwriters, (i) 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 by the Company 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, in each case other than such documents as are available on the internet.
(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 90 days from the date of the Prospectus without the prior written consent of SG Cxxxx xxxer than: (i) the Company's sale of the Stock hereunder and the issuance of shares 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 or warrants, or rights pursuant to The Rights Agreement dated December 13, 2000 by and between the Company and Equiserve Trust Company, N.A. or upon the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof, or (ii) the issuance by the Company of shares of Common Stock as consideration for mergers, acquisitions, other business combinations, or strategic alliances, occurring after the date of this Agreement, provided that each recipient of shares pursuant to this clause (ii) agrees that all such shares remain subject to restrictions substantially similar to those contained in this subsection. The Company will cause each executive officer and director of the Company to furnish to the Representative, prior to the Closing Date, a letter, substantially in the form of Exhibit I hereto, containing so-called lock-up provisions.
(i) The Company will supply the Representative 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 Representative, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any monthly periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(k) Prior to the First Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until SG Cxxxx xxxll have notified the Company of the completion of the resale of the Stock, the Company will not, and will use its best efforts to 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, except in compliance with Regulation M; 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 apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
Appears in 1 contract
Samples: Underwriting Agreement (Transkaryotic Therapies Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) a. The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issued, to obtain preventing or suspending the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time use of Sale any Preliminary Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file suspending any such proposed amendment or supplement qualification, use promptly its best efforts to which you reasonably objectobtain its withdrawal.
(c) During b. If at any time prior to the period mentioned in Section 5(f) below, expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to furnish to you a copy of each proposed free writing prospectus the Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of will promptly notify the offering or sale of the securities as contemplated by this Agreement Representatives thereof and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.upon their
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with the Underwriter:
(ai) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order qualification, to use promptly their best efforts to obtain its withdrawal.
(ii) To furnish promptly to the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(iii) To deliver promptly to the Underwriter such number of the following documents as the Underwriter shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any such order is issued, to obtain time after the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned date hereof in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file connection with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Stock or any other securities relating thereto and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable lawthe Securities Act, forthwith to preparenotify the Underwriter and, upon request, to file with the Commission such document and furnish, at its own expense, to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the dealers Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(whose names and addresses you will furnish iv) To file promptly with the Commission any amendment or supplement to the CompanyRegistration Statement or the Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to which Securities may have been sold filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus, any document incorporated by you on behalf reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter and to the filing.
(vi) 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.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any other dealers upon requestIssuer Free Writing Prospectus. If at any time after the date hereof any event shall have occurred as a result of which any Issuer Free Writing Prospectus, either amendments as then amended or supplements to supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus so that or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements in the Prospectus as so amended or supplemented will nottherein, in the light of the circumstances when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon request, to file such document and to 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable lawstatement or omission or effect such compliance.
(gviii) To endeavor As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 405 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, 440 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 Underwriter an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158).
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 no event shall connection therewith the Company shall not be obligated required to (i) qualify to do business as a foreign entity in any jurisdiction where in which it is would not now otherwise be required to so qualified or take any action that would subject it qualify, (ii) file a general consent to general service of process suitsin any such jurisdiction, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, (iii) subject itself to taxation in any jurisdiction where in which it is would not now otherwise be subject.
(hx) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering For a period of at least twelve months beginning with commencing on the first fiscal quarter of date hereof and ending on the Company occurring 45th day after the date of this Agreement which the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Stock, Class B Stock or securities convertible into or exercisable or exchangeable for Common Stock or Class B Stock (other than the Stock or Common Stock issued pursuant to employee benefit plans, qualified option plans or other employee compensation plans existing on the date hereof and any exchange or redemption at any time or from time to time by the Sponsor of any and all Class B Stock and OpCo Units held by the Sponsor for Common Stock), (B) 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 Common Stock or Class B Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock, Class B Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Stock, Class B Stock or securities convertible, exercisable or exchangeable into Common Stock, Class B Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter.
(xi) [Intentionally omitted.]
(xii) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall satisfy file a Rule 462(b) Registration Statement with the provisions of Section 11(aCommission in compliance with Rule 462(b) of under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the rules and regulations Company shall at the time of filing pay the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging filing fee for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company with the Commission pursuant to Section 13(aRule 462(b), 13(c), 14 or 15(d) of the Exchange Act.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwritereach of the Underwriters:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the first business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Representative with copies thereof; to advise the Representative, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing To furnish promptly, upon written request, to the Representative and to counsel for the Underwriters an electronic copy of the signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably objectexhibits filed therewith.
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentative such number of electronic copies of the following documents as the Representative shall reasonably request: (A) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) under each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus, and (C) each Issuer Free Writing Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the date hereof in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representative and, upon its request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representative may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Prospectus that will notcorrect such statement or omission or effect such compliance.
(d) On or prior to the final Delivery Date, to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.
(e) On or prior to the final Delivery Date, prior to filing with the Commission any amendment or supplement to the Registration Statement, or the Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Representative to the filing.
(f) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative.
(g) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. 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 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 when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the supplement any Issuer Free Writing Prospectus, to notify the Representative and, upon its 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities statement or Blue Sky laws of omission or effect such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectcompliance.
(h) To make generally available to the Company’s security holders and to you its securityholders as soon as practicable an earning statement covering a period of at least twelve months beginning (which may be satisfied by filing with the first fiscal quarter Commission’s Electronic Data Gathering, Analysis and Retrieval System (“EDXXX”)), but in any event not later than sixteen months after the Effective Date, an earnings statement of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunderthereunder (including, at the option of the Company, Rule 158).
(i) The Promptly from time to time to take such action as the Representative may reasonably request to qualify the Stock for offering and sale under the securities or “blue sky” laws and such other jurisdictions as the 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 that in connection therewith the Company will shall not be required to (i) qualify as a foreign corporation 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 such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(j) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device 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 exercisable or exchangeable for Common Stock (other than the Stock and 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 not issued under one of those plans), 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 equity awards pursuant to equity plans existing on the date hereof), (B) 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 (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) except as disclosed or incorporated by reference in the Preliminary Prospectus and the Prospectus, file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of 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 (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative, on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Schedule II hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); provided, however, that the foregoing shall not apply to the issuance of, or the entry into an agreement with respect to the issuance of, shares of Common Stock or other securities pursuant to (A) any compensation plans, instruments or agreements as disclosed or incorporated by reference in the Prospectus, (B) any acquisition or joint venture transaction by the Company or any of its subsidiaries and/or (C) a merger of a direct subsidiary with and into the Company.
(k) To apply the net proceeds from the sale of the Securities Stock being sold by the Company substantially in accordance with the description as described set forth in the Prospectus under the heading caption “Use of Proceeds.”
(jl) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(m) To use its best efforts to effect and maintain the listing of the Stock on the Nasdaq Capital Market.
(n) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(o) The Company will cooperate with the Underwriter in arranging for the Securities do and perform all things required or necessary to be eligible for clearance done and settlement through DTCperformed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Stock.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To file the requirements of Final Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission's close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or to the Final Prospectus or any amended Prospectus shall have been filedexcept as permitted herein; to advise the Representatives, (ii) promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Final Prospectus or for additional informationany amended Final Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusthe Final Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Final Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) the Securities Act Final Prospectus (including any amendment or supplement thereto); and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 Final Prospectus as so then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the Final Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Final Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representatives may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Final Prospectus which will not, in correct such statement or omission or effect such compliance;
(d) Prior to filing with the light Commission any amendment or supplement to the Registration Statement or the Final Prospectus pursuant to Rule 424 of the circumstances when Rules and Regulations, to furnish a copy thereof to the Prospectus (or in lieu thereof Representatives and counsel for the notice referred Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaserfiling, which consent shall not be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.unreasonably withheld;
(ge) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(f) For a period of five years following the Effective Date, to furnish or make available to the Representatives copies of all 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 thereunder.pursuant to the Exchange Act or the Exchange Act Regulations;
(g) 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 is 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, to file a general consent to service of process or subject itself to taxation in any jurisdiction;
(h) For a period of 90 days from the date of the Final 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 the Stock and 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, rights or other 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 (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 Lehman Brothers Inc. on behalf of the Underwriters; and to use its besx xxxxrts to cause each executive officer and director of the Company listed under the heading "Management" in the Final Prospectus Supplement to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto;
(i) The Company will To apply for the listing of the Stock on the New York Stock Exchange and to use its best efforts to effect that listing, subject only to official notice of issuance, prior to the First Delivery Date; and
(j) To apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of ProceedsFinal Prospectus.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Fleming Companies Inc /Ok/)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to U.S. counsel to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a copy of each such proposed draft of the Registration Statements as submitted for confidential review by the Commission and 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 other exhibits submitted or supplement and not to file any such proposed amendment or supplement to which you reasonably object.filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (ii) under each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Shares (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist have occurred as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, therein not misleading, or or, if for any event other reason it 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 it is be 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 Underwriter 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 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.
(f) If, during such same period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under comply with the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 Statements or the Prospectus or any amendment or supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or amendment any or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing;
(f) under As soon as practicable after the Effective Date of the Primary Registration Statement, to make generally available to the Company's security holders and to deliver to the Representatives an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act) is delivered to a purchaserAct and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable law.Rule 158);
(g) To endeavor For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives copies of all materials furnished by the Company to its shareholders and all public reports and all reports and financial statements furnished by the Company to (i) the principal U.S. national securities exchange or automatic quotation system upon which the Common Shares may be listed or quoted pursuant to requirements of or agreements with such securities exchange or system or (ii) 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 request to qualify the Securities Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may request and to comply with such laws so as to permit sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided PROVIDED, HOWEVER, that in no event shall connection therewith the Company shall not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or take in any action that would subject it to general service of process suits, other than those one arising out of the offering or sale of the securities as contemplated by this Agreement and Shares;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (a) offer for sale, sell or contract to sell, pledge or otherwise dispose of, or announce an offering 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 jurisdiction where it is not now subject.
person at any time in the future of) any Common Shares or other equity securities of the Company or any securities convertible into or exchangeable for any Common Shares or other equity securities, or sell or grant options, rights or warrants with respect to any Common Shares or equity securities of the Company or any securities convertible into or exchangeable for any Common Shares or other equity securities (h) To make generally available other than options granted or Common Shares issued pursuant to the Company’s security holders 's share option plan), or (b) 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 any Common Shares or other equity Securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Shares or other equity securities in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters; and (ii) to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter cause each director, officer and shareholders of the Company occurring after listed on Schedule 2 to furnish to the Representatives, prior to the First Delivery Date, a "lock-up" letter (each, a "Lock-up Letter"), substantially in the form of Exhibit A hereto;
(j) Prior to the Effective Date, to apply for the inclusion of the Common Shares on the Nasdaq National Market System and to use its best efforts to effect such quotation, subject only to official notice of issuance, prior to the First Delivery Date;
(k) To use its best efforts to cause the Shares to be accepted for settlement through the facilities of The Depository Trust Company ("DTC");
(l) To complete the 2-for-1 share split in respect of the Common Shares as contemplated in the Prospectus (including, without limitation, to provide that the holders of the Company's Class B Convertible Preferred Shares shall be entitled to convert such shares solely into post-share split Common Shares);
(m) To duly appoint The Bank of New York (or such other leading U.S. financial institution as may be reasonably satisfactory to the Representatives) as registrar and transfer agent for the Company's Common Shares;
(n) To apply the net proceeds from the sale of the Shares being sold by the Company as set forth in the Prospectus under the caption "Use of Proceeds";
(o) Between the date of this Agreement hereof and the First Delivery Date (both dates inclusive), to notify and consult with the Representatives, and to cause its subsidiaries and all other parties acting on its or their behalf to notify and consult with the Representatives, prior to issuing any press release or other announcement which shall satisfy could be material in the provisions of Section 11(a) context of the Securities distribution of the Shares;
(p) To conduct its business activities in a manner to avoid the requirement to be registered as an "investment company" pursuant to the Investment Company Act and the rules and regulations of the Commission thereunder., and that none of the Company's subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act and the rules and regulations of the Commission thereunder;
(iq) The Company will apply From and after the net proceeds from First Delivery Date, to use its best efforts to maintain the sale Shares as "marketable securities" within the meaning of Section 1296(e) of the Securities Internal Revenue Code and the regulations, rulings and interpretations thereunder; to monitor its PFIC status and take all reasonable steps to notify U.S. shareholders as described promptly as practicable in the Prospectus event that the Company believes it will become a PFIC in any taxable year; and if the Company becomes a PFIC, to provide U.S. shareholders, upon request, with the annual information statement and any other information necessary for U.S. shareholders to make a "qualified electing fund" election under Section 1295 of the heading “Use of Proceeds.”Internal Revenue Code and the regulations thereunder;
(jr) The Company will cooperate with To indemnify and hold harmless the Underwriter in arranging for Underwriters against any British Virgin Islands documentary, stamp or similar issuance tax, including any interest and penalties, on the Securities to be eligible for clearance issuance, sale and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed delivery by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActShares and on the execution and delivery of this Agreement; and
(s) To cause Deloitte & Touche to deliver one or more "initial comfort letters", with respect to the financial statements and financial data, and pro forma consolidated financial statements, of the Company and the IMPSAT Entities, dated the date of the Prospectus, in form and substance reasonably satisfactory to the Representatives, at or prior to the time copies of the Prospectus are furnished to the Representatives.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives a conformed copy and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and (ii) under each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 6:00 P.M., New York time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been later than 6:00 P.M., New York time, on the day following the date of such amendment or supplement); and, if the delivery of a prospectus is required at any time prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers 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 Shares at any time nine months or more after the Effective Time of the Primary Registration Statement, upon requestthe request of the Representatives but at the expense of such Underwriter, either amendments to prepare and deliver to such Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light reasonable judgment of the circumstances when Company or the Representatives, 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 Statements or any supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing;
(f) under As soon as practicable after the Securities Act) is delivered to a purchaser, be misleading or so Effective Date of the Primary Registration Statement (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have until at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives at their request copies of all 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 or automatic quotation system upon which the Common Stock 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.;
(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 domestic 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 Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(i) The For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (a) offer for sale, sell or contract to sell, pledge or otherwise dispose of, or announce an offering 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 other equity securities of the Company will or any securities convertible into or exchangeable for any shares of Common Stock or other equity securities, or sell or grant options, rights or warrants with respect to any shares of Common Stock or equity securities of the Company or any securities convertible into or exchangeable for any shares of Common Stock or other equity securities (other than (i) options or shares issued pursuant to the share option and stock purchase plans described in the Prospectus and (ii) shares issued pursuant to currently outstanding options, warrants or rights, in each case as in effect on the date hereof, provided that the recipient of shares pursuant to clause (i) or (ii) has executed a lock-up agreement referred to below or such options are not exercisable in whole or in part prior to the 180th day after the date of the Prospectus, (iii) upon prior written notice to Lehmxx Xxxthers, shares, not exceeding 20% of the outstanding Common Stock of the Company, issued in connection with acquisitions in which none of such shares are required to be registered under the Securities Act prior to the 180th day after the date of the prospectus, provided that each recipient of any such shares has executed with respect to such shares a lock-up agreement referred to below) or (b) 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 any shares of Common Stock or other equity securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of shares of Common Stock or other equity securities in cash or otherwise, in each case without the prior written consent of Lehmxx Xxxthers on behalf of the Underwriters; (ii) to cause each director, executive officer, employee holding options or warrants and shareholder (except shareholders listed on Schedule 2 hereto) of the Company to furnish to the Representatives, prior to the First Delivery Date, a "lock-up" letter (each, a "Lock-up Letter"), substantially in the form of Exhibit A hereto; and (iii) to cause each shareholder listed on Schedule 2 hereto to comply with the "lock-up" provisions to which such shareholder is subject under its purchase or similar agreement with the Company, which the Company represents and warrants prohibits all such shareholders from selling any shares of capital stock of the Company owned by such shareholder on the First Delivery Date for the 180-day "lock-up period" set forth in the Lockup-Letters; and not to permit any such shareholder to sell or transfer any shares of capital stock prior to the end of such 180-day lock-up period in each case without the consent of Lehmxx Xxxthers on behalf of the Underwriters, and, in connection therewith, shall instruct the Transfer Agent not to make any transfers of such stock for such period..
(j) Prior to the Effective Date, to apply for the listing of the Shares on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) To apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed Stock being sold by the Company as set forth in the Prospectus;
(l) 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;
(m) Between the date hereof and the First Delivery Date (both dates inclusive), to notify and consult with the Commission Representatives, and to cause its subsidiaries and all other parties acting on its or their behalf to notify and consult with the Representatives, prior to issuing any press release or other announcement which could be material in the context of the distribution of the Shares;
(n) In connection with the Directed Share Program, to ensure that the Directed Shares shall be restricted to the extent required by the NASD or pursuant to Section 13(a), 13(c), 14 or 15(d) the rules of the Exchange ActNASD from sale, transfer, assignment, pledge or hypothecation for a period of three months following the Effective Dates and also to direct the transfer agent to place stop transfer restrictions upon the Directed Shares for such period of time; and
(o) To comply with all applicable laws and regulations in each non-U.S. jurisdiction in which the Directed Shares are offered or sold.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 the Initial Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) 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 Initial Registration Statement as originally filed with the Commission and furnisheach amendment thereto (in each case including exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 7:00 A.M., California time, of the Underwriter business day following the execution and delivery of this Agreement or such later date as agreed to by the Company and XX Xxxxx) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 7:00 A.M., California time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate in writing to the Company and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally 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 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx and Deutsche Bank Securities Inc. (“Deutsche Bank”); provided, however, that the Company may issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of outstanding warrants or options as described in the Prospectus, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus (not to exceed the shares available for issuance or grant under such plans or arrangements as set forth in the Prospectus), but in the case of newly issued warrants or options, only if the holders of such warrants, options or shares issued upon exercise of such options or warrants agree or have agreed in writing not to 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 during such 90-day period without the prior written consent of XX Xxxxx and Deutsche Bank. The Company will cause its officers, directors and security holders holding an aggregate of at least 44% of the Company’s security holders and outstanding common stock (on a fully-diluted basis) to you as soon as practicable an earning statement covering furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after 90 days from the date of this Agreement which shall satisfy the provisions Prospectus, without the prior written consent of Section 11(a) of the Securities Act XX Xxxxx and the rules and regulations of the Commission thereunderDeutsche Bank.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 and its officers will not take, and the Company will use its best efforts to cause its directors and affiliates not to take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
(n) 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).
(o) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(p) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of Proceeds”.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to prepare the Prospectus or any amended Prospectus shall have been filed, (ii) setting forth the terms of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment Debt Securities and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take delivery of this Agreement; (ii) to make no further amendment or supplement to the Registration Statement or to the Prospectus prior to the applicable Closing Date, unless, if reasonably practicable, the Underwriters or their representatives have had a reasonable opportunity to review and comment upon such steps as it deems necessary amendment or supplement prior to ascertain its filing; (iii) to advise the Underwriters promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you the Underwriters with 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 you reasonably object.
thereof; (d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Companyiv) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Debt Securities; (v) during the same period, to advise the Underwriters, promptly after it receives notice thereof, of (A) 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, (B) the suspension of the qualification of the Debt Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for any such purpose or (C) 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 the Underwriters and to counsel for the Underwriters a copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits (other than those incorporated by reference) filed therewith;
(c) to deliver promptly to the Underwriters such number of the following documents as the Underwriters will reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture and such other exhibits as the Underwriters may reasonably request); (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 Date in connection with the offering or sale of the Debt Securities, and if at such time any events will 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 will be necessary to amend or supplement the Prospectus (or to file under the Exchange Act any document incorporated by reference in the Prospectus) to comply with the Securities Act or the Exchange Act., to notify the Underwriters and, upon the reasonable request of the Underwriters, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the 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 or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company, 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 and, promptly after filing with the Commission 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 Underwriters;
(f) as soon as practicable after the date of this Agreement and every Terms Agreement relating to designated Debt Securities, to make generally available to its Holders an earnings statement of the Company and its Significant 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) promptly from time to time, to use all reasonable efforts to take such action as the Underwriters may reasonably request to qualify the Debt Securities for offering and sale under the securities laws of such jurisdictions as the Underwriters may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for so long as may be necessary to complete the distribution of the Debt Securities; PROVIDED, HOWEVER, that in connection therewith, the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction where it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(h) if, and to the extent specified in the Terms Agreement attached hereto as Annex I, designated Debt Securities are to be duly authorized for listing on a national securities exchange, to apply for any listing of such designated Debt Securities on such national securities exchange and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the relevant Closing Date;
(i) to apply the net proceeds from the sale of the Debt Securities being sold by the Company as set forth in the Prospectus; and
(j) during the period beginning from the date of the Terms Agreement and continuing to and including the Business Day after the Closing Date with respect to such Terms Agreement, the Company will not offer, sell, contract to sell or otherwise dispose of any debt securities which are substantially similar to the Debt Securities designated for offer and sale, without the prior written consent of the Underwriters, which consent will not be unreasonably withheld
Appears in 1 contract
Samples: Underwriting Agreement (Ecolab Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; make no further amendment to the Registration Statements or any supplement to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will promptly prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and (iv) any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than 18 months after the light effective date of the circumstances when the Prospectus Registration Statement, an earnings statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act) is delivered to a purchaserof 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, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) SG Cowen other than the Company's sale of the Securities Act Stock hereunder anx xxx xxsuance of shares pursuant to (i) employee benefit plans, equity incentive plans or other employee compensation plans as in existence on the date hereof and as described in the rules Prospectus or (ii) currently outstanding options, warrants or rights. The Company will cause each officer, director and regulations stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit A hereto; the Company acknowledges, on behalf of such officers, directors and stockholders, that Lehman Brothers Inc. has assigned all its rights under any such letterx addressed to it to SG Cowen for the benefit of the Commission thereunderseveral Underwriters.
(i) The Cxxxxxx xill supply the Representatives or their counsel 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 apply 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified in advance), without the prior written consent of the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until SG Cowen shall have notified the Company of the completion of thx xxxxxx 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 Common Stock, or attempt to induce any person to purchase any Common 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 Common Stock.
(m) The Company will not take any action prior to the Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 5(b).
(n) The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
(o) The Company xxxx xxxxx xxe net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in arranging for connection with the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly comply with all reports applicable securities and any definitive proxy or information statementsother applicable laws, if any, required to be filed by rules and regulations in each foreign jurisdiction in which the Company Directed Shares are offered in connection with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Anadys Pharmaceuticals Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 as 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 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 and each amendment thereto (in each case excluding exhibits), (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 City, on the business day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the effective date of the 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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign 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, upon request, to the Representatives and to each of the other Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to shareholders 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 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 90 days from the date of the Prospectus without the prior written consent of SG Cowen other than the Company's sale of the Stock hereunder, xxx xxsuance of restricted Common Stock or options to acquire shares of Common Stock pursuant to the Company's employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof and the issuance of shares of Common Stock pursuant to valid exercises of currently outstanding options, warrants or rights. The Company will cause each officer and director listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose 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 SG Cowen and not to engage in any short selling of the Common Stock.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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, such consent not to be unreasonably withheld or delayed, of the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) Without limiting the provisions of section 4(h), in connection with the offering of the Stock, until SG Cowen shall have notified the Company of the completion of xxx xxxale 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) The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
(o) The Compxxx xxxx xxxxx the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
(p) The Company shall at all times engage and maintain, at its expense, a registrar and transfer agent for the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Encysive Pharmaceuticals Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as it deems necessary provided herein; to ascertain promptly whether prepare the Final Term Sheet, substantially in the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing Schedule III hereto and approved by the Commission and, in Representatives and file the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission Final Term Sheet pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that Rules and Regulations within the Underwriter otherwise would not have been required time period prescribed by such Rule; to file thereunder.
(e) If advise the Time Representatives, promptly after it receives notice thereof, of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend amendment or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter has been filed and to any dealer upon request, either amendments or supplements furnish the Representatives with copies thereof; to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination 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, Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To pay the applicable Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) without regard to the proviso therein;
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters a copies of the executed Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(d) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, (D) the Final Term Sheet, and (E) any document incorporated by reference in any Preliminary Prospectus or the Prospectus;
(e) During the period in which the Prospectus relating to the Notes (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, to comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with the Securities Act, the Company will promptly notify the Representatives and will, subject to Section 5(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request;
(f) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(g) For so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, 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;
(h) Not to make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives (which consent being deemed to have been given with respect to (A) the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof and (B) any other Issuer Free Writing Prospectus identified on Schedule II hereto).
(i) To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; 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;
(j) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Notes for offering and sale under the securities laws of such other jurisdictions in the United States 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 Notes; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation 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 such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(k) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, 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;
(l) To apply the net proceeds from the sale of the Notes being sold by the Company as set forth in the Prospectus;
(m) Not to take any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes;
(n) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act;
(o) 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;
(p) From the date hereof through the Delivery Date, the Company agrees not to, directly or indirectly, sell, offer to sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company with substantially similar terms to any of the 2012 Notes, the 2017 Notes or 2037 Notes, except with the prior written consent of Xxxxxx Brothers Inc. and Banc of America Securities LLC; and
(q) To comply with all agreements set forth in the representation letters of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as it deems necessary provided herein; to ascertain promptly whether prepare the Final Term Sheet, substantially in the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing Schedule III hereto and approved by the Commission and, in Representatives and file the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission Final Term Sheet pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that Rules and Regulations within the Underwriter otherwise would not have been required time period prescribed by such Rule; to file thereunder.
(e) If advise the Time Representatives, promptly after it receives notice thereof, of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend amendment or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter has been filed and to any dealer upon request, either amendments or supplements furnish the Representatives with copies thereof; to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination 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, Preliminary Prospectus or the Prospectus or 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To pay the applicable Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) without regard to the proviso therein;
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters copies of the executed Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(d) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, (D) the Final Term Sheet, and (E) any document incorporated by reference in any Preliminary Prospectus or the Prospectus;
(e) During the period in which the Prospectus relating to the Notes (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, to comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with the Securities Act, the Company will promptly notify the Representatives and will, subject to Section 5(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request;
(f) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(g) For so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, 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;
(h) Not to make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives (which consent being deemed to have been given with respect to (A) the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof and (B) any other Issuer Free Writing Prospectus identified on Schedule II hereto).
(i) To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; 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;
(j) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Notes for offering and sale under the securities laws of such other jurisdictions in the United States 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 Notes; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation 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 such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(k) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, 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;
(l) To apply the net proceeds from the sale of the Notes being sold by the Company as set forth in the Prospectus;
(m) Not to take any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes;
(n) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act;
(o) 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;
(p) From the date hereof through the Delivery Date, the Company agrees not to, directly or indirectly, sell, offer to sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company with substantially similar terms to any of the 2013 Notes, the 2018 Notes or 2038 Notes, except with the prior written consent of Xxxxxx Brothers Inc., Citigroup Global Markets Inc. and Xxxxxxx Xxxxx & Co.; and
(q) To comply with all agreements set forth in the representation letters of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to U.S. counsel to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a copy of each such proposed draft of the Registration Statements as submitted for confidential review by the Commission and 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 other exhibits submitted or supplement and not to file any such proposed amendment or supplement to which you reasonably object.filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (ii) under each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Shares (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist have occurred as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, therein not misleading, or or, if for any event other reason it 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 it is be 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 Underwriter 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 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.
(f) If, during such same period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under comply with the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon requestdealer in securities as many copies as the Representatives may from time to time request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. Notwithstanding the foregoing provisions of this Section 5(c), either amendments neither the Representatives' consent to, nor any Underwriters' delivery of, any such amended or supplements supplemented Prospectus shall constitute a waiver of, any of the conditions set forth in Section 7 hereof;
(d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any amendment or supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or amendment any or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing (which consent shall not be unreasonably withheld);
(f) under As soon as practicable after the Effective Date of the Primary Registration Statement, to make generally available to the Company's security holders and to deliver to the Representatives an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act) is delivered to a purchaserAct and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable law.Rule 158);
(g) To endeavor For a period of three years following the Effective Date of the Primary Registration Statement, to qualify furnish to the Securities Representatives copies of all materials furnished by the Company to its shareholders and all public reports and all reports and financial statements furnished by the Company to (i) the principal U.S. national securities exchange or automatic quotation system upon which the Common Shares may be listed or quoted pursuant to requirements of or agreements with such securities exchange or system or (ii) the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to cooperate with the Representatives in connection with the qualification or registration of the Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may request and to comply with such laws so as to permit sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided PROVIDED, HOWEVER, that in no event shall connection therewith the Company shall not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or take in any action that would subject it to general service of process suits, other than those one arising out of the offering or sale of the securities as contemplated by this Agreement and Shares;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (a) offer for sale, sell or contract to sell, pledge or otherwise dispose of, or announce an offering 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 jurisdiction where it person at any time in the future of) any Common Shares or other equity securities of the Company or any securities convertible into or exchangeable for any Common Shares or other equity securities, or sell or grant options, rights or warrants with respect to any Common Shares or equity securities of the Company or any securities convertible into or exchangeable for any Common Shares or other equity securities (other than (i) shares issued pursuant to share option or other employee benefit plans and (ii) pursuant to currently outstanding options, warrants or rights, in each case as in effect on the date hereof), or (b) 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 any Common Shares or other equity Securities, whether any such transaction described in clause (a) or (b) above is not now subject.
(h) To make generally available to be settled by delivery of Common Shares or other equity securities in cash or otherwise, in each case without the prior written consent of CSFBC on behalf of the Underwriters except that, prior to the expiration of such 180-day period, the Company may file one or more registration statements with the Commission on Form S-8 relating to the Company’s security holders 's existing share option plan as described in the Registration Statement; and (ii) to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter cause each director, executive officer, employee and shareholder of the Company occurring after listed on Schedule 2 to furnish to the Representatives, prior to the First Delivery Date, a "lock-up" letter (each, a "Lock-up Letter"), substantially in the form of Exhibit A hereto;
(j) To use its best efforts to cause the Shares to be accepted for settlement through the facilities of The Depository Trust Company ( "DTC");
(k) To complete the 2-for-1 share split (as defined in Section 7(r) hereof) in respect of the Common Shares as contemplated in the Prospectus (including, without limitation, to provide that the holders of the Company's Class B Convertible Preferred Shares shall be entitled to convert such shares solely into post-share split Common Shares);
(l) To duly appoint The Bank of New York (or such other leading U.S. financial institution as may be reasonably satisfactory to the Representatives) as registrar and transfer agent for the Company's Common Shares;
(m) To apply the net proceeds from the sale of the Shares being sold by the Company as set forth in the Prospectus under the caption "Use of Proceeds";
(n) Between the date of this Agreement hereof and the First Delivery Date (both dates inclusive), to notify and consult with the Representatives, and to cause its subsidiaries and all other parties acting on its or their behalf to notify and consult with the Representatives, prior to issuing any press release or other announcement which shall satisfy could be material in the provisions of Section 11(a) context of the Securities distribution of the Shares;
(o) To conduct its business activities in a manner to avoid the requirement to be registered as an "investment company" pursuant to the Investment Company Act and the rules and regulations of the Commission thereunder., and that none of the Company's subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act and the rules and regulations of the Commission thereunder;
(ip) The Company will apply From and after the net proceeds from First Delivery Date, to use its best efforts to maintain the sale Shares as "marketable securities" within the meaning of Section 1296(e) of the Securities Internal Revenue Code and the regulations, rulings and interpretations thereunder; to monitor its PFIC status and take all reasonable steps to notify U.S. shareholders as described promptly as practicable in the Prospectus event that the Company believes it will become a PFIC in any taxable year; and if the Company becomes a PFIC, to provide U.S. shareholders, upon request, with the annual information statement and any other information necessary for U.S. shareholders to make a "qualified electing fund" election under Section 1295 of the heading “Use of Proceeds.”Internal Revenue Code and the regulations thereunder;
(jq) The To indemnify and hold harmless the Underwriters against any British Virgin Islands documentary, stamp or similar issuance tax, including any interest and penalties, on the issuance, sale and delivery by the Company will cooperate of the Shares and on the execution and delivery of this Agreement;
(r) In connection with the Directed Share Program, to ensure that the Directed Shares shall be restricted to the extent required by the NASD or pursuant to the rules of the NASD from sale, transfer, assignment, pledge or hypothecation for a period of three months following the Effective Dates and also to direct the transfer agent to place stop transfer restrictions upon the Directed Shares for such period of time (it being understood that the Designated Underwriter in arranging for shall notify the Securities Company as to which Directed Share Participants shall be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by so restricted); and
(s) To comply with all applicable laws and regulations in each foreign jurisdiction in which the Company with the Commission Directed Shares are offered or sold pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries, if any (which need not be audited), complying with Section 11(a) is delivered to a purchaserof the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale other communications furnished to stockholders 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx and UBS other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to (i) employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the Prospectus, (ii) currently outstanding options, warrants or rights, (iii) a 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 (iv) a strategic partnership, joint venture, collaboration or similar arrangement for the purposes of developing, promoting, marketing or distributing the Company's current product candidates (which product candidates are described in the Prospectus); provided, however, that (A) in the case of clause (iii) above, the Company may not issue shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock (and regulations treating these securities as if converted into or exercised or exchanged for Common Stock), in excess of 10% of the Commission thereunderStock, (B) in the case of clause (iv) above, the Company may not issue shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock (and treating these securities as if converted into or exercised or exchanged for Common Stock), in excess of 10% of the Company's outstanding capital stock, including the Stock to be issued hereunder, and (C) in the case of clauses (iii) and (iv) above, the transferee shall furnish to the Representatives, prior to any such transfer, a letter, substantially in the form of Exhibit I hereto, pursuant to which such transferee shall agree not to 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, without the prior written consent of XX Xxxxx and UBS. The Company will cause each officer, director and stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of XX Xxxxx and UBS.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until XX Xxxxx and UBS 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(b).
(n) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted and the Company's obligation under this subsection (p) shall be limited to those Participants specifically identified by the Designated Underwriter. The Company will direct its transfer agent to place stop transfer restrictions upon the Directed Shares of such Participants for such period of time.
(q) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in arranging for connection with the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly comply with all reports applicable securities and any definitive proxy or information statementsother applicable securities and other laws, if any, required to be filed by rules and regulations in each foreign jurisdiction in which the Company Directed Shares are offered in connection with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) a. The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of filed and will: furnish the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.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 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 Statements or the Prospectus or for additional information;
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or not later than 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 430B 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, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when 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 in lieu any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(gf) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations 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 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 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) The 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 the Stock and 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), 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 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. on behalf of the Underwriters; and to cause each shareholder, officer and director of the Company will to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (a "Lock-up Agreement");
(j) To deliver a Lock-up Agreement request to all current and former employees of the Company who have been granted options under the Company's employee benefit plans;
(k) Prior to the Effective Date, to apply for the inclusion of the Stock on the National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(l) To apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed Stock being sold by the Company as set forth in the Prospectus;
(m) To take such steps as shall be necessary to ensure that the Company shall not become, and that any subsidiary of the Company shall not be required to register as, an "investment company" or "controlled" by an "investment company" within the meaning of such terms under the Investment Company Act of 1940, as amended, and the rules and regulations thereunder;
(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 stabilization or manipulation of the price of the shares of Common Stock (including the Stock) to facilitate the sale or resale of such shares; and
(o) In connection with the Commission pursuant Directed Share Program, to Section 13(a)ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, 13(c)Inc. or the rules of such association from sale, 14 transfer, assignment, pledge or 15(d) hypothecation for a period of three months following the date of the Exchange Acteffectiveness 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Underwriters and file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Underwriters and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Underwriters shall reasonably object by notice to the Company after a reasonable period to review; advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Underwriters 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Underwriters, 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Underwriters thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 Underwriters 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 Underwriters and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 Underwriters 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 deliver promptly to the Underwriters in New York City such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (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 City time, on the business day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than 18 months after the effective date of the Registration Statement (as defined in Rule 158(c) 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).
(f) The Company will promptly take from time to time such actions as the Underwriters may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; PROVIDED that the Company and its subsidiaries shall not be obligated to qualify as foreign 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 Underwriters and, upon request, to each of the other Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to stockholders 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 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx other than the Company's sale of the Stock hereunder and the issuance of shares 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, except as otherwise contemplated in such letter. The Company will cause each officer, director and stockholder listed in Schedule C to furnish to the Underwriters, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose 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, except as otherwise contemplated in such letter.
(i) The Company will supply the Underwriters 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 Underwriters, 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Underwriters are notified), without the prior written consent of the Underwriters, unless in the judgment of the Company and its counsel, and after notification to the Underwriters, such press release or communication is required by law.
(l) 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(b);
(n) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds."
Appears in 1 contract
Samples: Underwriting Agreement (Triquint Semiconductor Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) a. The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issued, to obtain preventing or suspending the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time use of Sale any Preliminary Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file suspending any such proposed amendment or supplement qualification, use promptly its best efforts to which you reasonably objectobtain its withdrawal.
(c) During b. If at any time prior to the period mentioned in Section 5(f) below, expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to furnish to you a copy of each proposed free writing prospectus the Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
c. The Company will furnish promptly 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. 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented Prospectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
e. The Company will notmake generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(g) To endeavor f. The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided PROVIDED that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now 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) 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 without the prior written consent of XX Xxxxx other than the Company's sale of the Stock hereunder and the issuance of shares 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; The Company will cause each officer, director and shareholder listed in Schedule C to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of XX Xxxxx.
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 Statement and the Prospectus.
k. Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
l. 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 that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available prior to the Company’s security holders and Option Closing Date which would require the Prospectus to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of be amended or supplemented pursuant to Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.4(b);
(i) n. The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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."
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Second Delivery Date except as permitted herein; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representative, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospects, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stock order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Registration Statement, Representative and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representative in Section 5(fNew York City such number of the following documents as the Representative shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New -19- York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been required later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when Primary Registration Statement in connection with the Prospectus is not yet available to prospective purchaser and any event shall occur offering or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light sale of the circumstances, not misleading, Stock (or any other securities relating thereto) and if at such time any event events shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representative and, upon its request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers dealer in securities as many copies as the 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, and in case any Underwriter is required to deliver a prospectus in connection with -20- sales of any of the Stock at any time nine months or more after the Effective Time of the Primary Registration Statement upon requestthe request of the Representative but at the expense of such Underwriter, either amendments to prepare and deliver to such Underwriter as many copies as the Representative may from time to time reasonably request of an amended or supplements supplemented Prospectus complying with Section 10(a)(3) of the Securities Act; (d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representative, be required by the Securities Act or requested by the Commission; (e) Prior to filing with the Commission any (i) amendment to either of the Registration Statements or supplement to the Prospectus or (or in lieu thereof the notice referred ii) any Prospectus pursuant to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out 424 of the offering or sale Rules and Regulations, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the securities Representative to the filing: (f) As soon as contemplated by this Agreement and practicable after the ProspectusEffective Date of the Primary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representative an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of Section 11(aneed not be audited) complying -21-
(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158); (g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representative copies of all 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 or Preferred 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 Representative may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the 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; (i) The Company will apply the net proceeds For a period of two years from the sale date of the Securities as described Prospectus, not to offer for sale, sell or otherwise dispose of (or enter into any transaction which is designed to, or could be expected to, result in the Prospectus under disposition or purchase -22- by any person of), directly or indirectly, any shares of Common Stock (other than the heading “Use Stock and 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), or sell or grant options, rights or warrants with respect to any shares of Proceeds.”
Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), without the prior written consent of the Representative; and to cause each officer and director of the Company to furnish to the Representative, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each person shall agree not to offer for sale, sell or otherwise dispose of (or enter into any transaction which is designed to, or could be expected to, result in the disposition or purchase by any person of), directly or indirectly, any shares of Common Stock for a period of two years from the date of the Prospectus, without the prior written consent of the Representative; (j) The Company will cooperate with the Underwriter in arranging for the Securities Prior to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company filing with the Commission any reports on Form SR pursuant to Section 13(a), 13(c), 14 or 15(d) Rule 463 of the Exchange Act.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 -23-
Appears in 1 contract
Samples: Underwriting Agreement (Cluckcorp International Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwritereach of the Underwriters of any Designated Securities:
(a) The Company will comply with To prepare the requirements of Prospectus as amended and supplemented in relation to the Designated Securities in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities ActCommission’s close of business on the second business day following the execution and delivery of the applicable Pricing Agreement or, as if applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective such earlier time as may be required by Rule 424(b); to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to the Designated Securities and prior to the Time of Delivery for such Designated Securities that shall be disapproved by the Representatives promptly after reasonable notice thereof; to advise the Representatives promptly of any amended Prospectus shall have been filedsuch amendment or supplement after such Time of Delivery and 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), (ii13(c), 14 or 15(d) of the receipt Exchange Act for so long as the delivery of any comments from a prospectus is required in connection with the Commissionoffering or sale of such Designated Securities, (iii) and during such same period to advise the Representatives promptly after it receives notice thereof of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus or for additional informationany amended Prospectus has been filed with the Commission, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusprospectus relating to the Securities, or of the suspension of the qualification of the such Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information relating to the Registration Statement, the Prospectus, any amendment or supplement thereto, the Prospectus as amended or supplemented or the offer and sale of the Designated Securities; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issuedpreventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Designated 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 such Designated Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or supplementing the Registration Statementto file a general consent to service of process in any jurisdiction (it being recognized that, solely for purposes of this Section 5(b), the Time of Sale Prospectus or Company shall not be required by the Prospectus during the period mentioned in Section 5(f) belowRepresentatives, without its consent, to furnish subject itself to you a copy any securities laws or regulations of each such proposed amendment the European Union or supplement and not to file any such proposed amendment or supplement country to which you reasonably object.the Company was not subject immediately prior to the offering and sale of such Designated Securities);
(c) During To furnish the period mentioned Underwriters with copies of the Prospectus as amended or supplemented in Section 5(f) belowsuch quantities as the Representatives may from time to time reasonably request, to furnish to you and, if the delivery of 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 is required at any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result time in the Underwriter or the Company being required to file connection with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Designated Securities and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period 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 applicable lawthe Act, forthwith to prepare, file with the Commission and furnish, at its own expenseExchange Act or the Trust Indenture Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or supplements a supplement to the Prospectus so that the statements in the Prospectus as so amended will correct such statement or supplemented will not, in the light of the circumstances when the Prospectus (omission or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.effect such compliance;
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(hd) To make generally available to the Company’s its security holders and to you as soon as practicable practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c)), an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the applicable Pricing Agreement and continuing to and including the earlier of (i) The the termination of trading restrictions for the Designated Securities, as notified to the Company will apply by the Representatives and (ii) the Time of Delivery for the Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company that mature more than one year after such Time of Delivery and that are substantially similar to such Designated Securities, without the prior written consent of the Representatives;
(f) To furnish to the holders of the Designated Securities, upon such holders’ request, as soon as practicable after the end of each fiscal year, an annual report (including a balance sheet and statements of income, shareholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by an independent registered public accounting firm) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration Statement, to furnish to the Representatives copies of all periodic or current reports or other communications (financial or other) furnished to shareholders, and deliver to the Representatives (i) as soon as they are available, copies of any periodic or current reports and financial statements furnished to or filed with the Commission or any national securities exchange on which the Designated Securities or any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representatives may from time to time reasonably request (such financial information and statements to be on a consolidated basis in reports furnished to its shareholders generally or to the Commission); and
(h) To use the net proceeds received by it from the sale of the Designated Securities as described pursuant to this Agreement and the applicable Pricing Agreement in the Prospectus under manner specified in the heading “Use Prospectus, including in any supplement thereto, relating to the offer and sale of Proceedssuch Designated Securities.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; advise the Representative, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representative with copies thereof; advise the Representative, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representative thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach Underwriter and to any dealer in securities as many copies as the Representative 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, file the Company upon the request of the Representative and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to the Representative 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 deliver promptly to the Representative in New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representative may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representative may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction;
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representative and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after [180] days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares 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; the Company will cause each officer, director and regulations shareholder listed in Schedule B to furnish to the Representative, prior to the First Closing Date, a letter, substantially in the form of 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 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 Commission thereunderProspectus, without the prior written consent of XX Xxxxx.
(i) The Company will supply the Representative 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 Representative, 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified in advance), without the prior written consent of the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law.
(l) 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(b).
(n) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in arranging for connection with the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly comply with all reports applicable securities and any definitive proxy or information statementsother applicable securities and other laws, if any, required to be filed by rules and regulations in each foreign jurisdiction in which the Company Directed Shares are offered in connection with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Kintera Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Final Prospectus in a form approved by the Underwriters and to file such Final Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective ; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or to the Final Prospectus or any amended Prospectus shall have been filedexcept as permitted herein; to advise the Underwriters and the Selling Stockholders, (ii) promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Final Prospectus or for additional informationany amended Final Prospectus has been filed and to furnish the Underwriters and the Selling Stockholders with copies thereof; to advise the Underwriters and the Selling Stockholders, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Final Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fUnderwriters such number of the following documents as each Underwriter shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) each Preliminary Prospectus, the Securities Act Final Prospectus and any amended or supplemented Final Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 Final Prospectus as so then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Final Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Final Prospectus in order to comply with applicable lawthe Securities Act, forthwith to preparenotify the Underwriters and, upon its request, to prepare and furnish without charge to the Underwriters and to any dealer in securities as many copies as the Underwriters 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 and furnish, at its own expense, any amendment to the Underwriter and to Registration Statement or the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to Prospectus or any other dealers upon request, either amendments or supplements supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light reasonable judgment of the circumstances when Company or the Underwriters, 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 in lieu any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Underwriters and counsel for the Underwriters and obtain the consent of the Underwriters to in Rule 173(a) under the Securities Act) is delivered to a purchaserfiling, which consent shall not be misleading unreasonably delayed or so that the Prospectus, as amended or supplemented, will comply with applicable law.withheld;
(gf) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of 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) Upon the request of the Underwriters, for a period of two (2) years following the Effective Date, to furnish to the 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 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 thereunder;
(h) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the 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 Shares; provided that in connection therewith, the Company shall not be required to qualify as a foreign 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 (x) the Shares, or (y) shares of Common Stock issued pursuant to employee benefit plans, stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights or upon conversion of shares of Common Stock), 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 benefit 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 Rxxx, Bxxx;
(j) To take such steps as shall be necessary to ensure that the Company shall not become an “investment company” as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.;
(ik) 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 Securities as described in Shares for the Prospectus purposes set forth under the heading “Use of Proceeds.”” in the Prospectus;
(jm) 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 cooperate with maintain a transfer agent for its Common Stock; and
(o) Until the Underwriter in arranging 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 Securities Underwriters, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company with or its activities or the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Actoffering contemplated hereby.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish the Representatives with copies thereof; to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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;
(c) To deliver promptly to the Representatives in New York City such number of the following documents as the Representatives shall request: (i) conformed copies of the Registration Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (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 Prospectus (not later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) 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 of the Primary Registration Statement 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 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 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 Statements 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 (i) any amendment to either of the Registration Statements, any supplement to the Prospectus or any document incorporated by reference in the Prospectus or (ii) 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 of the Primary Registration Statement, 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
(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of three years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives copies of all 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 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 or to subject itself to taxation in any jurisdiction in which it is not currently subject to taxation; and
(i) For a period of 90 days from the date of the Prospectus, 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 or purchase by any person at any time in the future of) any shares of Common Stock (other than the Stock and shares offered or issued pursuant to employee benefit plans, 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 in connection with the offer for sale, or the conversion, of the Company's Convertible Subordinated Notes (the "Notes") being offered contemporaneously with the offering of the Stock), 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 and other than in connection with the offer, or conversion, of the Notes), 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, 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 or purchase by any person at any time in the future of) any shares of Common Stock for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representatives. 7.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 the Initial Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) 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 Initial Registration Statement as originally filed with the Commission and furnisheach amendment thereto (in each case including exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 9:00 A.M., New York time, of the Underwriter second business day following the execution and to delivery of this Agreement and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 9:00 A.M., New York City time, on the second business day following the date of such amendment or supplement).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate in writing to the Company and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction;
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act and Stock hereunder, provided, however, that the rules and regulations Company may issue shares of the Commission thereunderCommon Stock or options to purchase the Common Stock, or Common Stock upon the exercise of outstanding warrants or options as described in the Prospectus, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus (not to exceed the shares available for issuance or grant under such plans or arrangements as set forth in the Prospectus), but in the case of newly issued warrants or options, only if the holders of such warrants, options or shares issued upon exercise of such newly-issued options or warrants agree or have agreed in writing not to 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 during such 180-day period without the prior written consent of XX Xxxxx. The Company will cause each officer, director and shareholder to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of XX Xxxxx.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 and its officers or directors will not take, and the Company will use its best efforts to cause its affiliates not to take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
(n) 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).
(o) During the period of one year from the date hereof, the Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(p) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”
(j) ". The Company will cooperate with repay all outstanding indebtedness under the Underwriter in arranging for ORIX Loan Agreement not more than three (3) business days after the Securities to be eligible for clearance and settlement through DTCFirst Closing Date.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish the Representatives with copies thereof; to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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;
(c) To deliver promptly to the Representatives in New York City such number of the following documents as the Representatives shall request: (i) conformed copies of the Registration Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (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 Prospectus (not later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) 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 of the Primary Registration Statement 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 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 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 Statements 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 (i) any amendment to either of the Registration Statements, any supplement to the Prospectus or any document incorporated by reference in the Prospectus or (ii) 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 of the Primary Registration Statement, 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 three years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives copies of all 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 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 or to subject itself to taxation in any jurisdiction in which it is not currently subject to taxation; and
(i) For a period of 90 days from the date of the Prospectus, 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 or purchase by any person at any time in the future of) any shares of Common Stock (other than the Stock and shares offered or issued pursuant to employee benefit plans, 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 in connection with the offer for sale, or the conversion, of the Company's Convertible Subordinated Notes (the "Notes") being offered contemporaneously with the offering of the Stock), 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 and other than in connection with the offer, or conversion, of the Notes), 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 reasonably 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 or purchase by any person at any time in the future of) any shares of Common Stock for a period of 90 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify ; to use reasonable best efforts to cause the Underwriter promptly, and confirm Registration Statement to become effective; to give the Representatives notice in writing, (i) when of its intention to file any post-effective amendment to the Registration Statement shall become effectiveor amendment or supplement to the Prospectus; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of (ii1) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission Commission, the ISA or any other foreign or Israeli regulatory body, of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, Preliminary Prospectus or the Prospectus or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of (2) the initiation or threatening of any proceedings proceeding for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(bpurpose, or (3) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its reasonable best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) the Securities Act Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when 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 not to file any such document to which the Representatives or counsel for the Underwriters shall reasonably object in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.writing;
(gf) To endeavor timely file such reports pursuant to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions Exchange Act as you shall reasonably request; provided that are necessary in no event shall the Company be obligated order to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable 's shareholders an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after and its subsidiaries (which need not be audited) for the date of this Agreement which shall satisfy purposes of, and to provide the provisions benefits contemplated by, the last paragraph of Section 11(a) 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 Commission, the Nasdaq Stock Market Inc. or to any national securities exchange upon which the Ordinary Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act and the rules and regulations 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 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 Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or as a dealer in securities, to become subject to taxation or to file a general consent to service of process in any such jurisdiction, and provided further that in connection therewith, the Company shall not be required to offer the Shares to the public in any jurisdiction outside of the United States or to prepare a separate disclosure document other than the Registration Statement or the Prospectus or such supplementary disclosure document as may be reasonably required for use with the Prospectus to form any Canadian offering memorandum that may be delivered in connection with the distribution of the Shares;
(i) The (A) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (other than (x) the Shares to be sold hereunder and the Private Placement Shares; (y) pursuant to employee benefit plans or qualified stock option plans which, by their terms or by other written agreement, cannot be sold, pledged or otherwise disposed of within a period of 180 days from the date of the Prospectus without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters; or (z) 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 Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary 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; (B) to cause each shareholder, optionholder, officer, director and employee of the Company will to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in a form substantially similar to that attached as Exhibit 1 hereto or as otherwise agreed with the Representatives, pursuant to which each such person shall agree, subject to certain exceptions, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary 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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary 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. on behalf of the Underwriters; provided, however, that the Company shall not be required to cause any such letter to be furnished by any person who holds no capital stock of the Company or right to acquire any capital stock of the Company other than one or more options that, by their terms, cannot be exercised, in whole or in part, prior to May 31, 2002 (each such person, a "DISTANT OPTIONHOLDER"); (C) prior to May 31, 2002, not to sell or grant to any such Distant Optionholder any capital stock of the Company or any option or other right to acquire any capital stock of the Company, exercisable in whole or in part prior to such date; and (D) not to accelerate, amend or modify in any way any option or other right to acquire any capital stock of the Company held by any Distant Optionholder as of the date of this Agreement or at any time prior to May 31, 2002 so as to cause such option to become exercisable, in whole or in part, prior to May 31, 2002, in each case unless such a letter is delivered by such person;
(j) To apply the net proceeds from the sale of the Securities Shares and the Private Placement Shares as described set forth in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.Prospectus;
(k) The Subject to compliance by the Underwriters with the final paragraph of Section 4 of this Agreement, to the extent that, and for as long as, the laws of Israel require any permit for approval by, or exemption by the ISA of the transaction contemplated hereby to be legally permitted and to remain effective, the Company will file promptly all reports obtain and maintain each such permit, approval or exemption valid and in full force and effect;
(l) In any definitive proxy suit in a court of competent jurisdiction (whether in the United States or information statementsany other jurisdiction) seeking enforcement of this Agreement or provisions of this Agreement, (i) if the plaintiffs therein seek a judgment in United States dollars, the Company will not interpose any defense or objection to or otherwise oppose judgment, if any, required being awarded in such currency, and (ii) if the plaintiffs therein seek to be filed have any judgment (or any aspect thereof) awarded in foreign currency linked, for the period from entry of such judgment until actual payment thereof in full has been made, to the changes in the foreign currency-United Sates dollar exchange rate, the Company will no interpose any defense or objection to or otherwise oppose inclusion of such linkage in any such judgment (except to comply with any applicable law); and the Company agrees that it will not initiate or seek to initiate any action, suit or proceeding, in Israel or in any other jurisdiction other than the United States, seeking damages or for the purpose of obtaining any injunction or declaratory judgment against the enforcement of, or a declaratory judgment concerning any alleged breach by the Company of or other claim by you in respect of, this Agreement or any of your rights under this Agreement, including without limitation any action, suit or proceeding challenging the enforceability of or seeking to invalidate in any respect the submission by the Company hereunder to the jurisdiction of federal or New York state courts or the designation of the laws of the State of New York as the law applicable to this Agreement;
(m) If any payment of any sum due under this Agreement from the Company is made to or received by the Underwriters or any controlling person of any Underwriter in a currency other than freely transferable United States dollars, whether by judicial judgment or otherwise, the obligations of the Company under this Agreement shall be discharged only to the extent of the net amount of freely transferable United States dollars that the Underwriters or such controlling persons, as the case may be, in accordance with normal bank procedures, are able to lawfully purchase with such amount of such other currency; and to the extent that the Underwriters or such controlling persons are not able to purchase sufficient United States dollars with such amount of such other currency to discharge the obligations of the Company to the Underwriters of such controlling persons, as the case may be, the Company shall not be discharged with respect to such difference, and any such undischarged amount will be due as a separate obligation and shall not be affected by payment of or judgment being obtained for any other sums due under or in respect of this Agreement;
(n) To take such steps as shall be necessary to ensure that the Company shall not become an "investment company" as defined in the Investment Company Act of 1940, as amended;
(o) In connection with the Commission pursuant Directed Share Program, to Section 13(a)ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, 13(c)Inc. or the rules of such association from sale, 14 transfer, assignment, pledge or 15(d) hypothecation for a period of three months following the date of the Exchange Acteffectiveness of the Registration Statement. Xxxxxx Brothers Inc. will notify the Company as to which 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 Directed Shares for such period of time.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Second Delivery Date except as permitted herein; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representative, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospects, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stock order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Registration Statement, Representative and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representative in Section 5(fNew York City such number of the following documents as the Representative shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been required later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when Primary Registration Statement in connection with the Prospectus is not yet available to prospective purchaser and any event shall occur offering or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light sale of the circumstances, not misleading, Stock (or any other securities relating thereto) and if at such time any event events shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representative and, upon its request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representative may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Prospectus which will notcorrect such statement or omission or effect such compliance, and in the light case any Underwriter is required to deliver a prospectus in connection with sales of any of the circumstances when Stock at any time nine months or more after the Prospectus (or in lieu thereof Effective Time of the notice referred Primary Registration Statement upon the request of the Representative but at the expense of such Underwriter, to in Rule 173(a) under prepare and deliver to such Underwriter as many copies as the Securities Act) is delivered Representative may from time to a purchaser, be misleading or so that the Prospectus, as time reasonably request of an amended or supplemented, will comply supplemented Prospectus complying with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a10(a)(3) of the Securities Act and Act; (d) To file promptly with the rules and regulations Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission; (e) Prior to filing with the Commission thereunder.
any (i) The Company will apply the net proceeds from the sale amendment to either of the Securities as described in Registration Statements or supplement to the Prospectus under or (ii) any Prospectus pursuant to Rule 424 of the heading “Use of Proceeds.”
(j) The Company will cooperate with Rules and Regulations, to furnish a copy thereof to the Underwriter in arranging Representative and counsel for the Securities to be eligible for clearance Underwriters and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by obtain the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) consent of the Exchange Act.Representative to the filing:
Appears in 1 contract
Samples: Underwriting Agreement (Cluckcorp International Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(f) below, to furnish to you a copy New York City such number 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 you following documents as the Representatives shall reasonably object.
(d) Not to take any action that would result in request: conformed copies of the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers 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 of the Primary Registration Statement, upon requestthe request of the Representatives but at the expense of such Underwriter, either amendments to prepare and deliver to such Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing;
(f) under As soon as practicable after the Securities Act) is delivered to a purchaser, be misleading or so Effective Date of the Primary Registration Statement (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have until at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of 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 of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Common Stock 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, other than documents filed by XXXXX;
(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 (whether any transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise) (i) 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 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 substantially similar securities (other than the Stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or under currently outstanding options, warrants or rights, or (ii) 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 under 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 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 for a period of 180 days from the date of the Prospectus not to, directly or indirectly (whether any transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise) (i) 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 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 substantially similar securities or (ii) 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, without the prior written consent of Xxxxxx Brothers Inc.
(j) Prior to the Effective Date of the Primary Registration Statement, to apply for the 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
(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.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statement Statements or to the Prospectus to which the Representatives shall become effectivereasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either of the Registration Statements has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act or the Exchange Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statements (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) SG Cowen other than the Company's sale of the Securities Act Stock hereunder and xxx xxxuance of shares pursuant to qualified stock option plans, currently outstanding options, warrants or rights. The Company will cause each officer, director and stockholder listed in Schedule C to furnish to the rules and regulations Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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 Commission thereunderProspectus, without the prior written consent of SG Cowen.
(i) The Company will supply the Representatives with cxxxxx xx 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 other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until SG Cowen shall have notified the Company of the completion of the xxxxxx 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) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jo) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. ("NASD") or the NASD rules from the sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statements. SG Cowen will notify the Company as to which Participants will nexx xx xx so restricted. The Company will direct the removal of such transfer restrictions upon the expiration of such period of time.
(p) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter in arranging Directed Share Program (including the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Securities to be eligible for clearance Directed Share Program materials) and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy stamp duties, similar taxes or information statementsduties or other taxes, if any, required to be filed incurred by the Company Underwriters in connection with the Commission pursuant to Section 13(a)Directed Share Program.
(q) The Company covenants with SG Cowen that the Company will comply with all applicable securitxxx xxx other applicable laws, 13(c), 14 or 15(d) of rules and regulations in each foreign jurisdiction in which the Exchange ActDirected Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Nomos Corp)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to prepare the Prospectus or any amended Prospectus shall have been filed, (ii) setting forth the terms of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment Debt Securities and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take delivery of this Agreement; (ii) to make no further amendment or supplement to the Registration Statement or to the Prospectus prior to the applicable Closing Date, unless, if reasonably practicable, the Underwriters or their representatives have had a reasonable opportunity to review and comment upon such steps as it deems necessary amendment or supplement prior to ascertain its filing; (iii) to advise the Underwriters promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you the Underwriters with 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 you reasonably object.
thereof; (d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Companyiv) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Debt Securities; (v) during the same period, to advise the Underwriters, promptly after it receives notice thereof, of (A) 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, (B) the suspension of the qualification of the Debt Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for any such purpose or (C) 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 the Underwriters and to counsel for the Underwriters a copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits (other than those incorporated by reference) filed therewith;
(c) to deliver promptly to the Underwriters such number of the following documents as the Underwriters will reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture and such other exhibits as the Underwriters may reasonably request); (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 Date in connection with the offering or sale of the Debt Securities, and if at such time any events will 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 will be necessary to amend or supplement the Prospectus (or to file under the Exchange Act any document incorporated by reference in the Prospectus) to comply with the Securities Act or the Exchange Act, to notify the Underwriters and, upon the reasonable request of the Underwriters, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the 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 or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company, 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 and, promptly after filing with the Commission 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 Underwriters;
(f) as soon as practicable after the date of this Agreement and every Terms Agreement relating to designated Debt Securities, to make generally available to its Holders an earnings statement of the Company and its Significant 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) promptly from time to time, to use all reasonable efforts to take such action as the Underwriters may reasonably request to qualify the Debt Securities for offering and sale under the securities laws of such jurisdictions as the Underwriters may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for so long as may be necessary to complete the distribution of the Debt Securities; PROVIDED, HOWEVER, that in connection therewith, the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction where it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(h) if, and to the extent specified in the Terms Agreement attached hereto as Annex I, designated Debt Securities are to be duly authorized for listing on a national securities exchange, to apply for any listing of such designated Debt Securities on such national securities exchange and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the relevant Closing Date;
(i) to apply the net proceeds from the sale of the Debt Securities being sold by the Company as set forth in the Prospectus; and
(j) during the period beginning from the date of the Terms Agreement and continuing to and including the Business Day after the Closing Date with respect to such Terms Agreement, the Company will not offer, sell, contract to sell or otherwise dispose of any debt securities which are substantially similar to the Debt Securities designated for offer and sale, without the prior written consent of the Underwriters, which consent will not be unreasonably withheld.
Appears in 1 contract
Samples: Underwriting Agreement (Ecolab Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statement Statements or to the Prospectus to which the Representatives shall become effectivereasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either of the Registration Statements has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act or the Exchange Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawsupplement).
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(he) To make generally available to the Company’s security holders and to you its stockholders as soon as practicable practicable, but in any event not later than eighteen months after the effective date of the Registration Statements (as defined in Rule 158(c) under the Securities Act), an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided 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.
(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) 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 by the Company with the Commission thereunderpursuant 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 without the prior written consent of XX Xxxxx other than the Company’s sale of the Stock hereunder and the issuance of shares pursuant to qualified stock option plans, currently outstanding options, warrants or rights. The Company will cause each officer, director and stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of XX Xxxxx.
(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 other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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(b);
(n) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of Proceeds”.”
(jo) Promptly after completion of the offering, the Company will conduct a rescission offer with respect to shares of the Company’s common stock issued to certain individuals pursuant to the Company’s 401(k) Profit Sharing Plan. The Company will place in escrow at Closing funds equal to 150% of the Company’s good faith estimate of its obligations under such rescission offer.
(p) The Company will cooperate comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Underwriter Xxxxxxxx-Xxxxx Act, and use its best efforts to cause the Company’s directors and officers, in arranging for their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) provisions of the Exchange Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply prepare the Rule 462(b) Registration Statement, if necessary, in a form reasonably approved by the Representatives and file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; prepare the Prospectus in a form reasonably approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its reasonable best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) 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 as originally filed with the Commission and furnisheach amendment thereto (in each case, at its own expenseexcluding exhibits), to (ii) each Preliminary Prospectus, (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall provided, that, the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction;
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon reasonable request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale other communications furnished to shareholders 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(aXX Xxxxx other than (1) the Company's sale of the Securities Act Stock hereunder, (2) the Company's issuance of Common Stock upon the exercise of stock options as are presently outstanding and described in the rules Prospectus and regulations (3) the grant of options or the Commission thereunderCompany's sale or other award of Common Stock pursuant to stock options plans, employee stock purchase plans or other similar plans as are presently existing and described in the Prospectus; provided, that, in the case of clause (3), upon exercise of any such option or receipt of such stock award, the optionee or grantee executes a lock-up letter, substantially in the form of Exhibit I hereto. The Company will cause each of its officers, directors, shareholders and such optionholders listed on Schedule C hereto to furnish to the Representatives, prior to the First Closing Date, a lock-up 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 each of the Closing Dates which would require the Prospectus to be amended or supplemented pursuant to Section 4(I)(b).
(n) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) a. The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issued, to obtain preventing or suspending the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time use of Sale any Preliminary Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file suspending any such proposed amendment or supplement qualification, use promptly its best efforts to which you reasonably objectobtain its withdrawal.
(c) During b. If at any time prior to the period mentioned in Section 5(f) below, expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to furnish to you a copy of each proposed free writing prospectus the Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
c. The Company will 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. 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 and furnisheach amendment thereto (in each case including exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented Prospectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
e. The Company will notmake generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(g) To endeavor f. The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now 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) as soon as they are available, copies of all reports or other communications furnished to shareholders 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 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 without the prior written consent of XX Xxxxx other than the Company's sale of the Stock hereunder and the issuance of shares 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. The Company will cause each officer, director and shareholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of XX Xxxxx.
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 Statement and the Prospectus.
k. Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
l. 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 that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available prior to the Company’s security holders and Option Closing Date which would require the Prospectus to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of be amended or supplemented pursuant to Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.4(b);
(i) n. The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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."
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or not later than 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 430B 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, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish the Representatives with copies thereof; to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Offered 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 Offered 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 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 as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture, the computation of the ratio of earnings to fixed charges and the computation of per share earnings), (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 Offered 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 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 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) To the extent practicable, 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, and to the extent not practicable, immediately thereafter, to furnish a copy thereof to the Representatives and counsel for the Underwriters and to consult with the Representatives prior to the filing;
(f) As soon as practicable after the Effective Date, but in any event not later than 410 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 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) Until the earlier of the expiration of the period of five years following the Effective Date and the date on which the Company ceases to be subject to the reporting requirements of the Exchange Act, to furnish to the Representatives copies of all 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 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 Offered Securities and the Common Stock issuable upon conversion of the Offered 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 Offered Securities, 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) Except as described in the Prospectus, for a period of 180 days from the date of the Prospectus, 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 (other than the shares of Common Stock issuable upon conversion of the Offered Securities and shares of Common Stock 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), 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 of CapStar GP Corp., CapStar Hotels, Inc., Xxxxxx Hotels, Inc., Xxxx X. Xxxxxxxx, Xxxxx X. XxXxxxxx, Xxxx Xxxxx, Xxxx X. Xxxxxxx, and Xxxxx Xxxxxxxxxx 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 for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.;
(j) Prior to the Effective Date, to apply for the listing of the Offered Securities on the New York Stock Exchange, Inc. and to use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) To use its best efforts to complete the listing of the Common Stock issuable upon conversion of the Offered Securities on the New York Stock Exchange, Inc. prior to the initial issuance of such Common Stock;
(l) To apply the net proceeds from the sale of the Offered 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 covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act; to advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof in accordance with Section 7(c) hereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly all commercially reasonable efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist occurred as a result of which it is the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, therein not misleading, or or, if for any event other reason it 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under comply with the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as the Representatives may designate as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus that will correct such statement or omission or effect such compliance;
(d) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus so that the statements in the or any Prospectus as so amended or supplemented will not, in the light pursuant to Rule 424 of the circumstances when Rules and Regulations, to furnish a copy thereof to the Prospectus Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, which consent shall not be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.unreasonably withheld);
(ge) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(f) For a period of three years following the Effective Date, the Company will furnish to the Representatives (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders 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 thereunder.under the Exchange Act or mailed to stockholders; and (iii) such other information concerning the Company as the Representatives may reasonably request;
(g) 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 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, to file a general consent to service of process in any jurisdiction in which it is not otherwise subject or subject it to taxation as a foreign corporation;
(h) 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 the Stock and 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), 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 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. and X.X. Xxxxxx Securities Inc., on behalf of the Underwriters;
(i) The Company will To apply for the listing of the Stock on the 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;
(j) To apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “caption "Use of Proceeds.”
(j) The Company will cooperate with " in the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.Prospectus; and
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required To take such steps as shall be necessary to be filed by ensure that neither the Company with nor any of its subsidiaries shall become an "investment company" as defined in the Commission pursuant to Section 13(a)Investment Company Act of 1940, 13(c), 14 or 15(d) of the Exchange Actas amended.
Appears in 1 contract
Samples: Underwriting Agreement (Worldspan Technologies Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwritereach Underwriter that:
(a) The Company will comply with it will, if the requirements of Registration Statement has not heretofore become effective under the Act, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Securities Act or Rule 430B under the Securities Act, a post-effective amendment to the Registration Statement, as applicablesoon as practicable after the execution and delivery of this Agreement, and will notify use its best efforts to cause the Underwriter promptlyRegistration Statement or such post-effective amendment to become effective at the earliest possible time; and the Company will comply fully and in a timely manner with the applicable provisions of Rule 424(b) and Rule 430A under the Act and will provide evidence satisfactory to you of such compliance;
(b) it will advise you promptly and, and if requested by you, confirm the notice such advice in writing, (i) when the Registration Statement has become effective, if and when the Prospectus is sent for filing pursuant to Rule 424 under the Act and when any post-effective amendment to the Registration Statement shall become becomes effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of Commission or any request by the Commission for any amendment state securities commission or other regulatory authority that relate to the Registration Statement or any amendment requests by the Commission for amendments to the Registration Statement or supplement amendments or supplements to the Prospectus or for additional information, and (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or the initiation or, to the best knowledge of the initiation or threatening Company, threat of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing purpose by the Commission andor any state securities commission or other regulatory authority, in and (iv) of the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance happening of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending event or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus information becoming known during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
paragraph (e) If below that makes any statement of a material fact made in the Time Registration Statement untrue or that requires the making of Sale Prospectus is being used any additions to solicit offers or changes in the Registration Statement (as amended or supplemented from time to buy time) in order to make the Securities at statements therein not misleading or that makes any statement of a time when material fact made in the Prospectus is not yet available (as amended or supplemented from time to prospective purchaser and time) untrue or that requires the making of any event shall occur additions to or condition exist changes in the Prospectus (as a result of which it is necessary amended or supplemented from time to amend or supplement the Time of Sale Prospectus time) in order to make the statements therein, in light of the circumstances, not misleading, or ; if at 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 it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law forthwith to prepare, file with time the Commission and furnish, at its own expense, shall issue or institute proceedings (or threaten to institute any such proceedings) to issue any stop order suspending the Underwriter and to any dealer upon request, either amendments or supplements to the Time effectiveness of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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 any state securities commission or other regulatory authority shall issue or institute proceedings (or threaten to institute proceedings) to issue an order suspending the qualification or exemption of the Shares under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(c) it will furnish to you without charge four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits filed therewith, and will furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so that the Time filed and of Sale Prospectuseach amendment to it, without exhibits, as amended or supplemented, will comply with applicable law.you may reasonably request;
(fd) Ifit will not file any amendment or supplement to the Registration Statement, during whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus of which you shall not previously have been advised and provided a copy a reasonable period of time prior to the filing thereof or to which you or your counsel shall reasonably object; and to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to cause the same to become promptly effective;
(e) promptly after the Registration Statement becomes effective, and from time to time thereafter for such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) a prospectus is required by law the Act to be delivered in connection with the sales by an underwriter or a dealer (in the opinion of your counsel), it will furnish to each Underwriter and dealer without charge as many copies of the Prospectus (and any amendment or supplement of the Prospectus) as such Underwriter or a dealer may reasonably request for the purposes contemplated by the Act; the Company consents to the use of the Prospectus and any amendment or supplement thereto by any Underwriter or any dealer, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) above any event shall occur or condition exist information become known as a result of which in the opinion of your counsel it is becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing as of the date the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable any law, it will forthwith prepare and, subject to prepareparagraph 5(d) above, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf sole expense of the Underwriter and to any other dealers upon request, either amendments Company an appropriate amendment or supplements supplement to the Prospectus so that the statements of any material facts in the Prospectus Prospectus, as so amended or supplemented and supplemented, will not, not in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) it is delivered to a purchaserso delivered, be misleading misleading, or so that the Prospectus, as amended or supplemented, Prospectus will comply with the Act and all other applicable law.law and it will furnish to the Underwriters and to such dealers as the Underwriters shall specify, at the sole expense of the Company, such number of copies thereof as such Underwriters or dealers may reasonably request;
(g) To endeavor prior to qualify any public offering of the Securities Shares, it will cooperate with you and counsel for the Underwriters in connection with the registration, qualification or filing of notices of the offer and sale of the Shares by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that may request and to continue such qualification in no event shall effect as long as required for distribution of the Company be obligated Shares and to qualify file such consents to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, or other than those arising out of the offering documents as may be necessary in order to effect such registration or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.qualification;
(h) To it will not acquire any capital stock of the Company prior to the exercise in full or termination or expiration of the option to purchase the Additional Shares nor will the Company declare or pay any dividend or make any other distribution upon the Common Stock payable to shareholders of record on a date prior to the exercise in full or termination or expiration of the option to purchase the Additional Shares, except in either case as contemplated by the Prospectus;
(i) it will make generally available to the Company’s its security holders and furnish to you the Underwriters as soon as reasonably practicable an earning a consolidated earnings statement covering a period of at least twelve 12 months beginning with after the first fiscal quarter "effective date" (as defined in Rule 158 under the Act) of the Company occurring Registration Statement (but in no event commencing later than 90 days after the date of this Agreement which shall such date) that will satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission Rule 158 thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”;
(j) The Company during the period of five years after the date of this Agreement, it will cooperate with furnish to you a copy (i) as soon as practicable after the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statementsfiling thereof, if any, required to be of each report filed by the Company with the Commission pursuant to Section 13(aCommission, any securities exchange or the National Association of Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after the release thereof, 13(c), 14 or 15(d) of each material press release in respect of the Company; (iii) as soon as available, of each report of the Company mailed to shareholders; and (iv) as soon as available, such other publicly available information concerning the Company as you may reasonably request;
(k) it will use the net proceeds received by it from the sale of the Shares being sold by it in the manner specified in the Prospectus;
(l) it will cause the Shares to be listed, subject to notice of issuance or sale, on The Nasdaq National Market (the "NASDAQ"); it will comply with all registration, filing and reporting requirements of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and the NASDAQ for so long as delivery of a Prospectus is required in connection with the offering or sale of the Shares;
(m) Prior to the Closing Date and any Closing Date, as the case may be, not to issue any press release or other communication relating to the offering of the Shares, or hold any press conference with respect to the Company, any subsidiary, the financial conditions, results of operations, business, properties, assets, or liabilities of any of them, or this offering, without prior written consent of EVEREN Securities, Inc. which shall not be unreasonably withheld; and
(n) it will use its best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterfurther agrees, for the benefit of each of the Underwriters:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriters which approval shall not be unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or not later than 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective ; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or the Prospectus prior to any applicable Delivery Date or any amended to the Time of Sale Prospectus shall have been filedprior to its first use on the date hereof, (ii) except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed with the Commission and to furnish the 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 additional informationso long as the delivery of a prospectus is required by applicable law in connection with the offering or sale of the Shares; to advise the Underwriters, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus, the Time of Sale Prospectus or the Prospectus, of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Time of Sale Prospectus or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent 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 order qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed or facsimile signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) each Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus and any amended or supplemented Preliminary Prospectus, Time of Sale Prospectus or Prospectus, and, if the delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required at any time after the Effective Time in connection with the offering or sale of the Shares and, if at such time, any events shall have occurred as a result of which the Time of the Sale Prospectus or the Prospectus, as the case may be, 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 Time of Sale Prospectus or Prospectus is issueddelivered (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act), not misleading, or, if for any other reason it shall be necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to comply with the Securities Act, to obtain notify the lifting thereof at Underwriters and, upon their request, to prepare and furnish without charge to the earliest possible moment.Underwriters and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Time of Sale Prospectus or Prospectus which will correct such statement or omission or effect such compliance;
(bd) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowProspectus, to furnish to you the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(ce) During To file promptly with the period mentioned Commission any amendment to the Registration Statement, the Time of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the Prospectus that may, in Section 5(fthe reasonable judgment of the Company or the Underwriters, be required by the Securities Act or is requested by the Commission;
(f) below, to To furnish to you 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 you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(dg) To obtain the Underwriters’ consent, not to be unreasonably withheld or delayed, before taking, or failing to take, any action that would cause the Company to be required to file a free writing prospectus pursuant to Rule 433(d) of the Securities Act, other than the free writing prospectus(es) listed in Schedule 2 hereto;
(h) Not to take any action that would result in the an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under of 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.;
(ei) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Shares at a time when the Prospectus is not yet available to prospective purchaser purchasers and (A) any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in writing in order to make the statements therein, in the light of the circumstancescircumstances under which they are made, not misleading, or (B) 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 fileor (C) if, 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 law, then the Company shall, with respect to clause (A) , (B) or (C), as the case may be, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter 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 (X) will not, in the light of the circumstances under which they are made, when delivered conveyed to a prospective purchaser, be misleading or misleading, (Y) so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, Statement or (Z) so that the Time of Sale Prospectus, Prospectus as so amended or supplemented, will comply supplemented otherwise complies with applicable law., as the case may be;
(fj) If, during such period after the first date of the public offering of the Securities For so long as the Prospectus delivery of a prospectus (or in lieu of thereof the notice referred to in Rule 173(a) under of the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the initial offering or sale of the securities as contemplated Shares, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Time of Sale Prospectus or the Prospectus and any document incorporated by this Agreement reference in the Time of Sale Prospectus or in the Prospectus pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Underwriters and counsel for the Prospectus, in any jurisdiction where it is not now subject.Underwriters and obtain the consent of the Underwriters to such filing;
(hk) To As soon as practicable after the Effective Date, to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 of the Securities Act);
(l) Promptly from time to time, to take such action as the Representatives may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions in the United States and Canada as the Representatives may request and in such other jurisdictions as the Company and the rules Representatives may mutually agree, and regulations 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 Commission thereunder.Shares; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(im) The 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 will in connection with the initial offering of the Shares (except after consultation with the Underwriters and as may be permitted by under federal securities laws);
(n) To use its commercially reasonable efforts to list, subject to official notice of issuance, the Shares on the New York Stock Exchange (the “NYSE”);
(o) To apply the net proceeds from the sale issuance of the Securities Shares as described in the Prospectus set forth under the heading “Use of Proceeds.”” in the Prospectus;
(jp) The To take such steps as shall be necessary to ensure that the Company will cooperate with and its Significant Subsidiaries shall not become an “investment company” as defined, and subject to regulation, under the Underwriter Investment Company Act; and
(q) For a period of 60 days after the date of the Prospectus not to (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any of the Shares or any other securities that are substantially similar to the Shares or any securities convertible into or exercisable or exchangeable for any of the Shares or such other securities (ii) enter into any swap or other agreement that transfers, in arranging for whole or in part, any of the Securities economic consequences of ownership of any of the Shares or such other securities, whether any such transaction described in clause (i) or (ii) above is to be eligible for clearance and settlement through DTC.
settled by delivery of any of the Shares of the Company or such other securities, in cash or otherwise without the prior written consent of the Representatives, which shall not be unreasonably withheld or delayed, except that the foregoing restrictions shall not apply to (kA) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed the issuance by the Company of shares of Common Stock or options or rights to acquire shares of Common Stock pursuant to employee benefit plans existing on the date hereof, including, without limitation, stock option and restricted stock plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date hereof, (B) the issuance of the Shares to be sold hereunder, (C) the issuance or transfer of any of the Shares pursuant to existing reservations, agreements and stock incentive plans, and (D) the issuance of shares of Common Stock pursuant to the Warrants and (E) the re-designation of the Common Stock pursuant to the Conversion. In addition, the Company shall cause the executive officers and directors of the Company, each of which are listed on Schedule 5 hereof, to enter into an agreement with the Commission pursuant Underwriters, the form of which is contained in Schedule 6 hereto, to Section 13(a), 13(c), 14 or 15(d) the effect of the Exchange Actagreement of the Company contained in this paragraph and deliver such agreements by the date hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe Placement Agent and the Purchasers:
(a) The Company will comply (i) to prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Placement Agent and in accordance with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify file such Rule 462(b) Registration Statement with the Underwriter promptly, and confirm Commission on or prior to the notice in writing, date hereof; (iii) when any post-effective to make no further amendment or supplement prior to the Closing Date to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement Statements or any amendment or supplement to the Prospectus or for additional informationSupplement, and (iv) of the issuance which shall be reasonably disapproved by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities Placement Agent in good faith promptly after reasonable notice thereof; (iii) for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities long as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) delivery of a prospectus is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and Stock, to advise the ProspectusPlacement Agent promptly after it receives notice thereof, in of the time when any jurisdiction where it is not now subject.
(h) To make generally available amendment to the Company’s security holders Registration Statements has been filed or becomes effective or any supplement to the Prospectus Supplement or any amended Prospectus Supplement has been filed and to you as soon as practicable an earning statement covering a period of at least twelve months beginning furnish the Placement Agent with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(acopies thereof; (iv) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will use its commercially reasonable efforts to file promptly all reports and any definitive proxy or information statements, if any, statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 15 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; (v) to advise the Placement Agent, promptly after it receives notices thereof, (x) of any request by the Commission to amend the Registration Statements or to amend or supplement the Prospectus Supplement or for additional information and (y) of the issuance by the Commission, of any stop order suspending the effectiveness of the Registration Statements or any post-effective amendment thereto or any order directed at any Incorporated Document or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the Prospectus Supplement or any amendment or supplement thereto, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the institution or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statements or Prospectus Supplement or for additional information; and (vi) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Base Prospectus or Prospectus Supplement or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order.
(b) To comply with the Securities Act and the Exchange Act, and the Rules and Regulations thereunder, so as to permit the completion of the distribution of the Stock as contemplated in this Agreement and the Prospectus Supplement. If during the period in which a prospectus is required by law to be delivered by a Placement Agent or a dealer in connection with the distribution of Stock contemplated by the Prospectus Supplement, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Prospectus Supplement in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus Supplement is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus Supplement to comply with any law, the Company promptly will prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Initial Registration Statement or supplement to the Prospectus Supplement so that the Prospectus Supplement as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus Supplement will comply with such law. Before amending the Initial Registration Statement or supplementing the Base Prospectus in connection with the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file such amendment or supplement to which the Placement Agent reasonably objects.
(c) To furnish promptly to the Placement Agent and to counsel for the Placement Agent a 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 deliver promptly to the Placement Agent such number of the following documents as the Placement Agent shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (ii) the Base Prospectus, (iii) the Prospectus Supplement (not later than 10:00 A.M., New York time, on the Business Day following the execution and delivery of this Agreement) and any amendment or supplement thereto (not later than 10:00 A.M., New York City time, on the Business Day following the date of such amendment or supplement); and (iv) any document incorporated by reference in the Base Prospectus or Prospectus Supplement. The Company will pay the expenses of printing or other production of all documents relating to the Offering.
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Initial Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company (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).
(f) To promptly take from time to time such actions as the Placement Agent may reasonably request to qualify the Stock for offering and sale under the securities, or blue sky, laws of such jurisdictions (including without limitation any post-filing requirements) as the Placement Agent may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock, and the Company will pay the fee of the National Association of Securities Dealers, Inc. ("NASD") in connection with its review of the Offering, if applicable. The Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified, to submit to taxation in any jurisdiction or to file a general consent to service of process in any jurisdiction.
(g) Not to 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 60 days from the date of the Prospectus Supplement without the prior written consent of XX Xxxxx, other than (i) the Company's sale of the Stock and the issuance of the Placement Agent's Warrant hereunder, (ii) the issuance of Common Stock pursuant to the exercise of currently outstanding stock options, (iii) the issuance of Common Stock, stock options, stock appreciation rights or other securities or rights to the Company's directors, officers, employees, consultants or agents pursuant to the Company's existing equity compensation plans and (iv) the issuance of Common Stock, stock options, stock appreciation rights or other securities or rights to the Company's directors, officers, employees, consultants or agents pursuant to equity incentive compensation plans adopted or approved by the board of directors of the Company after the date of this Agreement consistent with past practice. The Company will cause each of its executive officers and directors to furnish to the Placement Agent, prior to the Closing Date, a letter, substantially in the form of Exhibit C attached hereto, pursuant to which each such person shall agree not to 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 90 days from the date of the Prospectus Supplement, without the prior written consent of XX Xxxxx. If (i) the Company issues an earnings release or material news or a material event relating to the Company occurs during the last 17 days of the lock-up period, or (ii) prior to the expiration of the lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the lock-up period, then, to the extent Rule 2711(f)(4) of the rules and regulations of the NASD is applicable to the Company, the restrictions imposed by this Section 4(g) 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.
(h) Prior to the Closing Date, to furnish to the Placement Agent, 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 or incorporated by reference in the Base Prospectus, the Prospectus Supplement or the Registration Statements.
(i) Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Placement Agent is notified), without the prior written consent of the Placement Agent, unless in the judgment of the Company and its counsel, and after notification to the Placement Agent, such press release or communication is required by law.
(j) To apply the net proceeds from the sale of the Stock as set forth in the Prospectus Supplement under the heading "USE OF PROCEEDS".
(k) To comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and use its best efforts to cause the Company's directors 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.
(l) To engage and maintain, at its expense, a registrar and transfer agent for the Stock.
(m) To not take any action prior to the Closing Date which would require the Prospectus Supplement to be amended or supplemented pursuant to Section 4(b).
(n) To supply the Placement Agent 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.
Appears in 1 contract
Samples: Placement Agent Agreement (Northfield Laboratories Inc /De/)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries, if any (which need not be audited), complying with Section 11(a) is delivered to a purchaserof the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale other communications furnished to stockholders 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available 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 90 days from the date of the Prospectus without the prior written consent of SG Cowen and UBS other than the Company's sale of the Stock herexxxxx xxd the issuance of shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to (i) employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the Prospectus, (ii) currently outstanding options, warrants or rights, (iii) a 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 (iv) a strategic partnership, joint venture, collaboration or similar arrangement for the purposes of developing, promoting, marketing or distributing the Company's current product candidates (which product candidates are described in the Prospectus); provided, however, that (A) in the case of clause (iii) above, the Company may not issue shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock (and treating these securities as if converted into or exercised or exchanged for Common Stock), in excess of 10% of the Stock, (B) in the case of clause (iv) above, the Company may not issue shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock (and treating these securities as if converted into or exercised or exchanged for Common Stock), in excess of 10% of the Company's outstanding capital stock, including the Stock to be issued hereunder, and (C) in the case of clauses (iii) and (iv) above, the transferee shall furnish to the Representatives, prior to any such transfer, a letter, substantially in the form of Exhibit I hereto, pursuant to which such transferee shall agree not to 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 90 days from the date of the Prospectus, without the prior written consent of SG Cowen and UBS; provided, further, that, if (1) during the period thxx begins on the date that is 15 calendar days plus 3 business days before the last day of the 90-day restricted period and ends on the last day of the 90-day restricted period, the Company issues a earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 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 90-day period, the restrictions imposed by this section shall continue to apply until the expiration of the date that is 15 calendar days plus 3 business days after the date on which the issuance of the earnings release or the material news or material event occurs. The Company will cause each officer, director and stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose 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 SG Cowen and UBS.
(x) Xxx Xompany 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company’s security holders , its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and to you as soon as practicable an earning statement covering a period of at least twelve months beginning consistent with the first fiscal quarter past practices of the Company occurring after and of which the date of this Agreement which shall satisfy Representatives are notified), without the provisions of Section 11(a) prior written consent of the Securities Act and Representatives, unless in the rules and regulations judgment of the Commission thereunderCompany and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(il) In connection with the offering of the Stock, until SG Cowen and UBS shall have notified the Company of the completixx xx xxe 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 apply 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) The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
(o) The Company xxxx xxxxx xxe net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus and (iii) the Prospectus (not later than 10:00 A.M., to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and the Subsidiary (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and the Subsidiary shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) To the extent that any such reports, financial statements or other than those arising out communications are not available through the Commission's Electronic Data Gathering and Retrieval System ("XXXXX") or any system succeeding or replacing XXXXX, during the period of five years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares pursuant to (i) employee benefit plans, equity incentive plans or other employee compensation plans existing on the date hereof or described in the Prospectus, (ii) currently outstanding options, warrants or rights or (iii) 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, provided that (A) the Company may not issue shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock (and regulations treating these securities as if converted into or exercised or exchanged for Common Stock), in excess of 5% of the Commission thereunderCommon Stock outstanding immediately following the sale of the Stock (treating all securities as if converted into or exercised or exchanged for Common Stock) and (B) the transferee shall furnish to the Representatives, prior to any such transfer, a letter, substantially in the form of Exhibit I hereto. The Company will cause each officer, director and stockholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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(b).
(n) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in arranging for connection with the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly comply with all reports applicable securities and any definitive proxy or information statementsother applicable securities and other laws, if any, required to be filed by rules and regulations in each foreign jurisdiction in which the Company Directed Shares are offered in connection with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Metabasis Therapeutics Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriter:the several Underwriters that: 8
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 as 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 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 and each amendment thereto (in each case excluding exhibits), (ii) each Preliminary Prospectus, (iii) the Prospectus (not later than
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterto use its reasonable best efforts:
(a) The Company will comply To prepare the Registration Statement (including the Base Prospectus), the Preliminary Prospectus Supplement or the Final Prospectus Supplement, in a form reasonably approved by the Representative, in connection with the requirements of Rule 430A under Remarketing, and to file any such Final Prospectus Supplement pursuant to the Securities Act or Rule 430B under within the period required by the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment ; prior to the Registration Statement shall become effectivetermination of the Remarketing, to make no further amendment or any supplement to the Registration Statement, the Preliminary Prospectus Supplement, Final Prospectus Supplement or any amended Prospectus the Remarketing Materials which shall have been filedbe reasonably disapproved by the Representative promptly after reasonable notice thereof; to advise the Representative, (ii) promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Preliminary Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus Supplement or the Final Prospectus during the period mentioned in Section 5(f) below, Supplement or any amended Final Prospectus Supplement has been filed and to furnish the Representative with copies thereof; to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Final Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Trust Preferred Securities; to advise the Representative, on behalf of the Remarketing Agents, 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 the Final Prospectus Supplement or the Remarketing Materials, of the suspension of the qualification of the Remarketed Trust Preferred 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, the Preliminary Prospectus Supplement, the Final Prospectus Supplement or the Remarketing Materials 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 Supplement, any Final Prospectus Supplement or the Remarketing Materials or suspending any such qualification, to use promptly its best efforts to obtain the withdrawal of such order.
(b) To furnish promptly to the Representative and to counsel for the Remarketing Agents a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) Prior to 10:00 a.m. New York City time, on the New York Business Day (as defined in the Purchase Contract Agreement) next succeeding the date of this Agreement and from time to time, to deliver promptly to the Representative in New York City such number of the following documents as the Representative shall request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (ii) the Preliminary Prospectus Supplement, the Final Prospectus Supplement and any amended or supplemented Preliminary Prospectus Supplement or Final Prospectus Supplement and (iii) any Remarketing Materials; and, if the delivery of a prospectus is required at any time in connection with the Remarketing and if at such time any event shall have occurred as a result of which the Preliminary Prospectus Supplement or Final Prospectus Supplement or the Remarketing Materials as then amended or supplemented would include 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 Final Prospectus Supplement or the Remarketing Materials, as applicable, is delivered, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the Preliminary Prospectus Supplement or Final Prospectus Supplement and the Remarketing Materials or to file under the Exchange Act any document incorporated by reference in the Final Prospectus Supplement in order to comply with the Securities Act or the Exchange Act, to notify the Representative, on behalf of the Remarketing Agents, and, upon its request, to file such document and to prepare and furnish without charge to the Remarketing Agents and to any dealer in Securities as many copies as the Representative, on behalf of the Remarketing Agents, may from time to time request of an amended or supplemented Final Prospectus Supplement which will correct such statement or omission or effect such compliance.
(d) For so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Trust Preferred Securities, prior to the resignation or removal of the Representative pursuant to Section 8 herein, to file promptly with the Commission any amendment to the Registration Statement, the Preliminary Prospectus Supplement, or the Final Prospectus Supplement or any supplement to the Preliminary Prospectus Supplement or Final Prospectus Supplement that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Preliminary Prospectus Supplement or Final Prospectus Supplement or any document incorporated by reference in the Final Prospectus Supplement or (ii) any Preliminary Prospectus Supplement or Final Prospectus Supplement pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Representative, on behalf of the Remarketing Agents, and counsel for the Remarketing Agents; and not to file any such amendment or supplement which shall be reasonably disapproved by the Representative promptly by reasonable notice.
(f) To make generally available to securityholders of the Company and of the Trust and to deliver to the Representative, on behalf of the Remarketing Agents, as soon as practicable, but in any event not later than eighteen months after the effective date of the post-effective amendment to the Registration Statement (as defined in Rule 158(c) under the Securities Act) dated January 23, 2004, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 under the Securities Act).
(g) Promptly from time to time to take such action as the Representative, on behalf of the Remarketing Agents, may reasonably request to qualify the Remarketed Trust Preferred Securities and the obligations of the Company under the Notes and the Guarantee for offering and sale under the securities laws of such jurisdictions as the Representative 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 Trust Preferred Securities; provided that in connection therewith, neither the Company nor the Trust shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
Appears in 1 contract
Samples: Remarketing Agreement (Raytheon Co/)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 the Initial Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) 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 Initial Registration Statement as originally filed with the Commission and furnisheach amendment thereto (in each case including exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 7:00 A.M., California time, of the Underwriter business day following the execution and delivery of this Agreement or such later date as agreed to by the Company and the Representatives) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 7:00 A.M., California time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate in writing to the Company and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally 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 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx and Deutsche Bank, on behalf of the Representatives; provided, however, that the Company may issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon the exercise of outstanding warrants or options as described in the Prospectus, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus (not to exceed the shares available for issuance or grant under such plans or arrangements as set forth in the Prospectus), but in the case of newly issued warrants or options, only if the holders of such warrants, options or shares issued upon exercise of such options or warrants agree or have agreed in writing not to 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 during such 90-day period without the prior written consent of XX Xxxxx and Deutsche Bank. The Company will cause its officers, directors and security holders holding an aggregate of at least 44% of the Company’s security holders and outstanding common stock (on a fully-diluted basis) to you as soon as practicable an earning statement covering furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after 90 days from the date of this Agreement which shall satisfy the provisions Prospectus, without the prior written consent of Section 11(a) of the Securities Act XX Xxxxx and the rules and regulations of the Commission thereunderDeutsche Bank.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until the Representatives 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 and its officers will not take, and the Company will use its best efforts to cause its directors and affiliates not to take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
(n) 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).
(o) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(p) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of Proceeds”.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify ; to use reasonable best efforts to cause the Underwriter promptly, and confirm Registration Statement to become effective; to give the Representatives notice in writing, (i) when of its intention to file any post-effective amendment to the Registration Statement shall become effectiveor amendment or supplement to the Prospectus; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of (ii1) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission Commission, the ISA or any other foreign or Israeli regulatory body, of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, Preliminary Prospectus or the Prospectus or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of (2) the initiation or threatening of any proceedings proceeding for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(bpurpose, or (3) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its reasonable best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) the Securities Act Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when 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 not to file any such document to which the Representatives or counsel for the Underwriters shall reasonably object in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.writing;
(gf) To endeavor timely file such reports pursuant to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions Exchange Act as you shall reasonably request; provided that are necessary in no event shall the Company be obligated order to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable 's shareholders an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after and its subsidiaries (which need not be audited) for the date of this Agreement which shall satisfy purposes of, and to provide the provisions benefits contemplated by, the last paragraph of Section 11(a) 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 Commission, the Nasdaq Stock Market Inc. or to any national securities exchange upon which the Ordinary Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act and the rules and regulations 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 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 Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or as a dealer in securities, to become subject to taxation or to file a general consent to service of process in any such jurisdiction, and provided further that in connection therewith, the Company shall not be required to offer the Shares to the public in any jurisdiction outside of the United States or to prepare a separate disclosure document other than the Registration Statement or the Prospectus or such supplementary disclosure document as may be reasonably required for use with the Prospectus to form any Canadian offering memorandum that may be delivered in connection with the distribution of the Shares;
(i) The (A) For a period of 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (other than (x) the Shares to be sold hereunder; (y) pursuant to employee benefit plans or qualified stock option plans which, by their terms or by other written agreement, cannot be sold, pledged or otherwise disposed of within a period of 90 days from the date of the Prospectus without the prior written consent of Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters; or (z) 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 Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters; (B) to cause each shareholder known to the Company will to own of record 5% or more of the Ordinary Shares outstanding (including any optionholder who, upon the exercise of all options held by such optionholder, would own of record 5% or more of the Ordinary Shares then outstanding), officer and director of the Company to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in a form substantially similar to that attached as Exhibit 1 hereto or as otherwise agreed with the Representatives, pursuant to which each such person shall agree, subject to certain exceptions, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary 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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares 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. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters;
(j) To apply the net proceeds from the sale of the Securities Shares as described set forth in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.Prospectus;
(k) The Subject to compliance by the Underwriters with the final paragraph of Section 4 of this Agreement, to the extent that, and for as long as, the laws of Israel require any permit for approval by, or exemption by the ISA of the transaction contemplated hereby to be legally permitted and to remain effective, the Company will file promptly all reports obtain and maintain each such permit, approval or exemption valid and in full force and effect;
(l) In any definitive proxy suit in a court of competent jurisdiction (whether in the United States or information statementsany other jurisdiction) seeking enforcement of this Agreement or provisions of this Agreement, (i) if the plaintiffs therein seek a judgment in United States dollars, the Company will not interpose any defense or objection to or otherwise oppose judgment, if any, required being awarded in such currency, and (ii) if the plaintiffs therein seek to be filed have any judgment (or any aspect thereof) awarded in foreign currency linked, for the period from entry of such judgment until actual payment thereof in full has been made, to the changes in the foreign currency-United Sates dollar exchange rate, the Company will no interpose any defense or objection to or otherwise oppose inclusion of such linkage in any such judgment (except to comply with any applicable law); and the Company agrees that it will not initiate or seek to initiate any action, suit or proceeding, in Israel or in any other jurisdiction other than the United States, seeking damages or for the purpose of obtaining any injunction or declaratory judgment against the enforcement of, or a declaratory judgment concerning any alleged breach by the Company with of or other claim by you in respect of, this Agreement or any of your rights under this Agreement, including without limitation any action, suit or proceeding challenging the Commission pursuant enforceability of or seeking to Section 13(a), 13(c), 14 invalidate in any respect the submission by the Company hereunder to the jurisdiction of federal or 15(d) New York state courts or the designation of the Exchange Actlaws of the State of New York as the law applicable to this Agreement;
(m) If any payment of any sum due under this Agreement from the Company is made to or received by the Underwriters or any controlling person of any Underwriter in a currency other than freely transferable United States dollars, whether by judicial judgment or otherwise, the obligations of the Company under this Agreement shall be discharged only to the extent of the net amount of freely transferable United States dollars that the Underwriters or such controlling persons, as the case may be, in accordance with normal bank procedures, are able to lawfully purchase with such amount of such other currency; and to the extent that the Underwriters or such controlling persons are not able to purchase sufficient United States dollars with such amount of such other currency to discharge the obligations of the Company to the Underwriters of such controlling persons, as the case may be, the Company shall not be discharged with respect to such difference, and any such undischarged amount will be due as a separate obligation and shall not be affected by payment of or judgment being obtained for any other sums due under or in respect of this Agreement; and
(n) To take such steps as shall be necessary to ensure that the Company shall not become an "investment company" as defined in the Investment Company Act of 1940, as amended.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act on the business day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statement as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus (not later than the day following the execution and delivery of this Agreement) and any amended or supplemented Prospectus (not later than the day following the date of such amendment or supplement); and, if the delivery of a free writing prospectus prepared by or on behalf is required at any time after the Effective Time of the Underwriter that Registration Statement in connection with the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur offering or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light sale of the circumstances, not misleading, Stock (or any other securities relating thereto) and if at such time any event events shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 (or in lieu iii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing;
(f) under As soon as practicable after the Securities Act) is delivered to a purchaser, be misleading or so Effective Date of the Registration Statement (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date of the Registration Statement, to furnish to the Representatives copies of all 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 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) The Company will apply the net proceeds For a period of 90 days from the sale date of the Securities as Prospectus, 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 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 (i) Common Stock sold pursuant to the Prospectus, (ii) shares of Common Stock and other securities issued pursuant to employee benefit plans, stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) other transfers and dispositions, provided that the recipient remains subject to the lock-up restrictions for the remainder of the 90-day lock-up period), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for our Common Stock or substantially similar securities (other than the grant of options pursuant to option plans existing on the date hereof), whether any of the transactions described in this Section 7(i) is to be settled by delivery of common stock or other securities, in cash or otherwise, without the Prospectus under prior written consent of Lehmxx Xxxthers Inc.; and to cause each executive officer and director of the heading “Use of Proceeds.”
(j) The Company will cooperate with to furnish to Lehmxx Xxxthers Inc., prior to the Underwriter First Delivery Date, a letter or letters, in arranging form and substance reasonably satisfactory to counsel for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statementsUnderwriters, if any, required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) which each such person shall agree not to enter into any of the Exchange Act.transactions described in this Section 7(i) for a period of 90 days from the date of the Prospectus, without the prior written consent of Lehmxx Xxxthers Inc.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 5:00 p.m., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under any supplement to either Registration Statement, the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment ADS Registration Statement or to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when each Registration Statement shall become effective, or the ADS Registration Statement or any amendment thereto has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending 21 21 the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares or ADSs for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of either Registration Statement, the ADS Registration Statement or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to U.S. counsel to the Time of Sale Prospectus or U.S. Underwriters and the Prospectus during the period mentioned in Section 5(f) below, to furnish to you International Managers a signed copy of each such proposed of the Registration Statements and the ADS Registration Statement as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus (not later than 5:00 p.m., New York City time, on the 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 day following the date of such amendment or supplement), as the Representatives may reasonably request; and, if the delivery of a free writing prospectus prepared by or on behalf is required at any time after the Effective Time of the Underwriter that Primary Registration Statement in connection with the Underwriter otherwise would not have been required to file thereunder.
offering or sale of the Shares or ADSs (eor any other securities relating thereto) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each U.S. Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representatives may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Prospectus which will notcorrect such statement or omission or effect such compliance;
(e) Prior to filing with the Commission any amendment to either Registration Statement or the ADS Registration Statement, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred supplement to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplementedany Prospectus pursuant to Rule 424 of the Rules and Regulations, will comply with applicable law.to furnish a copy thereof to the Representatives and counsel to the U.S. Underwriters and the International Managers and not to file any such document to which the Representative shall reasonably object after having been given reasonable notice of the proposed filing thereof;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Shares or ADSs 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;
(h) Promptly from time to time to exercise best efforts to take such action as the Representatives may reasonably request, in cooperation with the U.S. Underwriters and the International Managers, to qualify the Shares and ADSs 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 Shares and ADSs; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or otherwise subject itself to taxation in any jurisdiction in which it is not otherwise so qualified or subject, except as may be provided in the Operative Agreements.
(i) The For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, issue, offer, pledge, sell, contract to sell or sell or grant any contract, option, right or warrant to purchase, purchase any option to sell, 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, transfer or purchase by any person at any time in the future of) any Shares or ADSs, Ordinary Shares (other than (x) Ordinary Shares issued pursuant to employee stock option and incentive plans existing on the date hereof and (y) Ordinary Shares or other share capital used by the Company in connection with 23 23 acquisitions or strategic alliances (provided in each such case that the recipient of such shares executes a Lock-up Letter (as defined below) in advance of any such transfer)) or any other share capital of the Company or securities convertible or exercisable or exchangeable for any such securities, or sell or grant options, rights or warrants with respect to any such securities (other than the grant of options pursuant to employee stock option and incentive plans existing on the date hereof) or enter into any swap or similar agreement that transfers, in whole or in part, the economic risk of ownership of any such securities, whether any of the foregoing transactions is to be settled by delivery of any such securities, in cash or otherwise, in each case without the prior written consent of the U.S. Representative; and to cause each shareholder of the Company, [each] holder of options in securities of the Company and each person named in the Prospectus to furnish to the Representatives, prior to the First Delivery Date, a letter or letters (the "Lock-up Letters"), in form and substance satisfactory to counsel to the U.S. Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, offer, pledge, sell, contract to sell or sell or grant any contract, option, right or warrant to purchase, purchase any option to sell, 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, transfer or purchase by any person at any time in the future of) any Shares, ADSs or other share capital of the Company or securities convertible or exercisable or exchangeable for any such securities, or sell or grant options, rights or warrants with respect to any such securities or enter into any swap or similar agreement that transfers, in whole or in part, the economic risk of ownership of any such securities (other than (x) any exercise of any stock option granted to such person pursuant to the Company's stock option plans prior to the date hereof (although such sentence shall apply to any subsequent sale of shares received upon any such exercise) or (y) if such person is a shareholder of the Company, the transfer of any Ordinary Shares to an affiliate of such person, provided that the Representatives are notified in advance of any such proposed transfer and are furnished in advance of such transfer with a copy of the Lock-up Letter duly executed by the transferee), whether any of the foregoing transactions is to be settled by delivery of any such securities, in cash or otherwise, for a period of 180 days from the date of the Prospectus;
(j) To use all reasonable efforts to maintain the listing of the Shares on the AEX and of the ADSs on the Nasdaq National Market System until none of the Shares and ADSs is outstanding;
(k) To comply in all material respects with the Deposit Agreement so that ADRs evidencing ADSs will be executed by the Depositary and delivered to the U.S. Underwriters on each Delivery Date; 24 24
(l) To comply in all material respects with all covenants and agreements of the Company contained in underwriting agreement relating to the High Yield Offering;
(m) To apply the net proceeds from the sale of the Securities Shares and ADSs being sold by the Company as described set forth in the Prospectus, and to apply the net proceeds from the Third High Yield Offering as set forth in the Prospectus under the heading “Use of Proceeds.”and in each prospectus relating to such Offering;
(jn) The Company will cooperate Between the date hereof and the First Delivery Date (both dates inclusive), to notify and consult with the Underwriter Representatives, and to cause its subsidiaries and all other parties acting on its or their behalf to notify and consult with the Representatives, prior to issuing any announcement which could be material in arranging for the Securities to be eligible for clearance context of the distribution of the Shares and settlement through DTC.ADSs;
(ko) The Company will file promptly all reports and Promptly to inform the Representatives of any definitive proxy or information statements, if any, required to be filed communications received by the Company from any governmental or regulatory agency or authority, including, without limitation, any Netherlands or Belgian regulatory authority, the Luxembourg Stock Exchange, or the Commission, relating to the offering of the Shares and ADSs and to furnish the Representatives with copies thereof;
(p) 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, and the rules and regulations of the Commission thereunder;
(q) 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 Commission offering of the Shares and ADSs;
(r) To take reasonable steps to minimize its accumulation of passive income and passive assets and the risk of the Company qualifying as a PFIC for 1999 and for future years; provided that such steps are consistent with the Company's general business plan and other business considerations (which are subject to change);
(s) To monitor its status as a PFIC and, in the event the Company is a PFIC, to provide the requisite information to enable shareholders to make qualified electing fund (as such term is used in the Code) elections;
(t) deliver an initial comfort letter, with respect to the financial statements of the Company and Svianed B.V., respectively, dated the date of the Prospectus, to the U.S. Underwriters and the International Managers, in form and substance reasonably satisfactory to the Representatives at or prior to the time copies of the Prospectus are furnished to the Representatives; and
(u) In advance of registering any transfers of its Ordinary Shares from Telecom Founders B.V. to a holder of depositary receipts in Telecom Founders, to provide (or cause Telecom Founders to provide) to the Representatives and their counsel evidence satisfactory to the Representatives that such transfers may be made pursuant to Section 13(a), 13(c), 14 or 15(d) of a valid exemption under the Exchange Securities Act.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Versatel Telecom International N V)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Underwriters, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriters with copies thereof; to advise the Underwriters, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Underwriters upon their request and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fUnderwriters such number of the following documents as the Underwriters shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Shares and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary in the opinion of counsel to the Underwriters during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Underwriters and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended Prospectus or supplements a supplement to the Prospectus so that which will correct such statement or omission or effect such compliance;
(d) To file promptly with the statements in Commission any amendment to the Registration Statement or the Prospectus as so amended or supplemented will notany supplement to the Prospectus that may, in the light judgment of the circumstances when Company or the Underwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or (or ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, but in lieu thereof any event not later than 45 days after the notice referred end of its fiscal quarter in which the first anniversary date of the Effective Date occurs, to in Rule 173(amake generally available to the Company's security holders and to deliver to the Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) under complying with Section 11(a) of the Securities Act) is delivered to a purchaserAct and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable law.Rule 158);
(g) To endeavor For a period of five years following the Effective Date, to furnish to the Underwriters copies of all 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 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 Underwriters may reasonably request to qualify the Securities Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 Shares; provided except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, or to do business in any jurisdiction where it is not now so qualified or take any action that would subject it execute a general consent to general service of process suits, other than those arising out process;
(i) For a period of 90 days from the date of the offering prospectus supplement relating to the Shares, not to offer for sale, sell or otherwise dispose of, directly or indirectly, any Common Shares or sell or grant options, rights or warrants with respect to any Common Shares or sell or otherwise dispose of securities convertible into or exchangeable or exercisable for Common Shares, otherwise than in accordance with this Agreement or as contemplated in the Prospectus or in connection with the Company's employee and director benefit plans or in connection with the conversion of securities convertible into Common Shares which are outstanding as of the date hereof or without the prior written consent of Xxxxxx Brothers Inc.; and to cause each executive officer of the Company to furnish to Xxxxxx Brothers Inc., prior to the 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, for a period of 90 days from the date of the prospectus supplement, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any Common Shares or sell or otherwise dispose of securities convertible into or exchangeable or exercisable for Common 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 Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise;
(j) To apply the net proceeds from the sale of the securities Shares being sold by the Company as contemplated by this Agreement and set forth in the Prospectus, in any jurisdiction where it is not now subject.;
(hk) To make generally available take such steps as shall be necessary to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of ensure that neither the Company occurring after nor any subsidiary shall become an "investment company" within the date meaning of this Agreement which shall satisfy such term under the provisions Investment Company Act of Section 11(a) of the Securities Act 1940 and the rules and regulations of the Commission thereunder.;
(il) The Company To not, directly or indirectly, take any action designed to or which will apply constitute or which might reasonably be expected to cause or result in the net proceeds from the sale manipulation or stabilization of the Securities as described in price of the Prospectus under the heading “Use of Proceeds.”Common Shares;
(jm) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive proxy or information statements, if any, 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 ActAct for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and
(n) To use its reasonable best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Shares are to occur.
Appears in 1 contract
Samples: Underwriting Agreement (Centerpoint Properties Trust)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Underwriters, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriters with copies thereof; to advise the Underwriters, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fUnderwriters such number of the following documents as the Underwriters shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant and each amendment thereto (in each case excluding exhibits other than this Agreement and 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 prior to Rule 433(d) under the Securities Act a free writing prospectus prepared by expiration of nine months after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Stock and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary in the reasonable opinion of counsel for the Underwriters during such same period 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 applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act or the Exchange Act, to notify the Underwriter Underwriters and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended Prospectus or supplements a supplement to the Prospectus so which will correct such statement or omission or effect such compliance, and in case the Underwriters are 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 their request but at their expense, to prepare and deliver to the Underwriters as many copies as the Underwriters 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 or the Prospectus or any supplement to the Prospectus that may, in the statements reasonable judgment of the Company or the Underwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus as so amended or supplemented will not, in the light (ii) any Prospectus pursuant to Rule 424 of the circumstances when Rules and Regulations, to furnish a copy thereof to the Prospectus Underwriters and counsel for the Underwriters and obtain consent of the Underwriters to the filing, which consent shall not be unreasonably withheld or delayed;
(or f) As soon as practicable after the Effective Date, but in lieu thereof any event not later than 60 days after the notice referred end of its fiscal quarter in which the first anniversary date of the Effective Date occurs, to in Rule 173(amake generally available to the Company's security holders and to deliver to the Underwriters an earning statement of the Company and its subsidiaries (which need not be audited) under complying with Section 11(a) of the Securities Act) is delivered to a purchaserAct and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable law.Rule 158);
(g) To endeavor Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 except that in no event shall the Company be obligated in connection therewith to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to income taxation in such jurisdiction, to qualify as a foreign corporation in such jurisdiction, or to execute a general consent to service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.process;
(h) To make generally available For a period of 90 days from the date of the Prospectus, not to offer for sale, sell or otherwise dispose of, directly or indirectly, any shares of Common Stock (other than the Stock, or Common Stock issuable pursuant to the Company’s security holders 's existing employee benefit and director plans or to you as soon as practicable redeem Units), or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options to purchase up to an earning statement covering a period aggregate of at least twelve months beginning 120,000 shares of Common Stock pursuant to the Company's, the Operating Partnership's and the Service Companies' existing employee, trustee or director benefit plans or the issuance of Units in connection with the first fiscal quarter acquisition of property, directly or indirectly, by the Company occurring after the date Operating Partnership, notice of which shall be provided to Xxxxxx Brothers Inc. promptly following any such issuance), otherwise than in accordance with this Agreement which shall satisfy or as contemplated in the provisions Prospectus, without the prior written consent of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.Xxxxxx Brothers Inc.;
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive proxy or information statements, if any, 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 ActAct for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock.
(j) To use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 1996, as a REIT under the Code;
(k) 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 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 1940 Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Purchase Agreement (Amli Residential Properties Trust)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issued, to obtain preventing or suspending the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time use of Sale any Preliminary Prospectus or the Prospectus during the period mentioned in Section 5(f) belowor suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(a) To furnish promptly to you each of the Representatives a conformed copy and to counsel for the Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(ci) During To deliver promptly to the period mentioned Representatives in Section 5(f) below, to furnish to you a copy New York City such number 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 you following documents as the Representatives shall reasonably object.
(d) Not to take any action that would result in request: conformed copies of the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(d) under and each amendment thereto (in each case excluding exhibits other than this Agreement and each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 6:00 P.M., New York time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been later than 6:00 P.M., New York time, on the day following the date of such amendment or supplement); and, if the delivery of a prospectus is required at any time prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments or supplements dealer in securities as many copies as the Representatives may from time to the Prospectus so that the statements in the Prospectus as so time reasonably request of an amended or supplemented Prospectus which will notcorrect such statement or omission or effect such compliance, and in the light case any Underwriter is required to deliver a prospectus in connection with sales of any of the circumstances when Shares at any time nine months or more after the Prospectus (or in lieu thereof Effective Time of the notice referred Primary Registration Statement, upon the request of the Representatives but at the expense of such Underwriter, to in Rule 173(a) under prepare and deliver to such Underwriter as many copies as the Securities Act) is delivered Representatives may from time to a purchaser, be misleading or so that the Prospectus, as time reasonably request of an amended or supplemented, will comply supplemented Prospectus complying with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a10(a)(3) of the Securities Act and the rules and regulations of the Commission thereunder.Act;
(ia) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company with the Commission pursuant any amendment to Section 13(a)the Registration Statements or the Prospectus or any supplement to the Prospectus that may, 13(c), 14 or 15(d) in the reasonable judgment of the Exchange Act.Company or the Representatives, be required by the Securities Act or requested by the Commission;
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the Commission's close of business, on the business day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement, and (ii) under each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been later than 10:00 A.M., New York time, on the day following the date of such amendment or supplement); and, if the delivery of a prospectus is required at any time prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Shares (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers 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 Shares at any time nine months or more after the Effective Time of the Primary Registration Statement, upon requestthe request of the Representatives but at the expense of such Underwriter, either amendments to prepare and deliver to such Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing;
(f) under As soon as practicable after the Securities Act) is delivered to a purchaser, be misleading or so Effective Date of the Primary Registration Statement (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have until at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of 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 of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Ordinary Shares 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;
(h) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the 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 Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly, (a) offer for sale, sell or contract to sell, pledge or otherwise dispose of, or announce an offering of (or enter into any transaction or device which is designed to, or could reasonably be expected to, result in the disposition or purchase by any person at any time in the future of) any Ordinary Shares or other equity securities of the Company or any securities convertible into or exchangeable for any Ordinary Shares or other equity securities, or sell or grant options, rights or warrants with respect to any Ordinary Shares or equity securities of the Company or any securities convertible into or exchangeable for any Ordinary Shares or other equity securities (other than (i) shares issued pursuant to the share option plans described in the Prospectus and (ii) pursuant to currently outstanding options, warrants or rights, in each case as in effect on the date hereof, provided that the recipient of such shares has executed a lock-up agreement referred to below or (b) 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 any Ordinary Shares or other equity securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Shares or other equity securities in cash or otherwise, in each case without the prior written consent of Lehmxx Xxxthers on behalf of the Underwriters and (ii) to cause each director, executive officer, employee, whether holding options or warrants, and shareholder of the Company to furnish to the Representatives, prior to the First Delivery Date, a "lock-up" letter (each, a "Lock-up Letter"), substantially in the form of Exhibit A hereto in each case except as set forth on Exhibit B;
(j) Prior to the Effective Date, to apply for the listing of the Shares on the Nasdaq National Market System and to use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the First Delivery Date;
(k) To apply the net proceeds from the sale of the Shares being sold by the Company as set forth in the Prospectus; and
(l) 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.
(im) The Company will apply Between the net proceeds from date hereof and the sale First Delivery Date (both dates inclusive), to notify and consult with the Representatives, and to cause its subsidiaries and all other parties acting on its or their behalf to notify and consult with the Representatives, prior to issuing any press release or other announcement which could be material in the context of the Securities as described in distribution of the Prospectus under the heading “Use of Proceeds.”Shares;
(jn) The Company will cooperate with From and after the Underwriter in arranging for First Delivery Date, to use its best efforts to maintain the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by Shares as "marketable securities" within the Company with the Commission pursuant to meaning of Section 13(a), 13(c), 14 or 15(d1296(e) of the Exchange ActInternal Revenue Code and the regulations, rulings and interpretations thereunder; to monitor its PFIC status and take all reasonable steps to notify U.S. shareholders as promptly as practicable in the event that the Company believes it will become a PFIC in any taxable year; and if the Company becomes a PFIC, to provide U.S. shareholders, upon request, with the annual information statement and any other information necessary for U.S. shareholders to make a "qualified electing fund" election under Section 1295 of the Internal Revenue Code and the regulations thereunder;
(o) In connection with the Directed Share Program, to ensure that the Directed Shares shall be restricted to the extent required by the NASD or pursuant to the rules of the NASD from sale, transfer, assignment, pledge or hypothecation for a period of six months following the Effective Dates and also to direct the transfer agent to place stop transfer restrictions upon such shares for such period of time;
(p) To comply with all applicable laws and regulations in each non-U.S. jurisdiction in which the Directed Shares are offered or sold;
(q) To use its best efforts to ensure that all shares issuable upon exercise of outstanding options are restricted from sale, transfer, assignment, pledge or hypothecation to the same extent as set forth in Exhibit A hereto for a period of six months following the Effective Dates and also to direct the transfer agent to place stop transfer restrictions upon such shares for such period of time; and
(r) Not to accelerate, or enter into any agreement to accelerate or take any action, directly or indirectly, that has the effect of causing the acceleration of the vesting schedules in its Option Plans, without the consent of Lehmxx Xxxthers.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterfurther agrees, for the benefit of each of the Underwriters:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriters which approval shall not be unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or not later than 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective ; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date or any amended to the Time of Sale Prospectus shall have been filedprior to its first use on the date hereof, (ii) except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed with the Commission and to furnish the 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 additional informationso long as the delivery of a prospectus is required by applicable law in connection with the offering or sale of the Securities; to advise the Underwriters, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus, the Time of Sale Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Time of Sale Prospectus or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent 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 order qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed or facsimile signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) each Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus and any amended or supplemented Preliminary Prospectus, Time of Sale Prospectus or Prospectus, and, if the delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required at any time after the Effective Time in connection with the offering or sale of the Securities and, if at such time, any events shall have occurred as a result of which the Time of the Sale Prospectus or the Prospectus, as the case may be, 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 Time of Sale Prospectus or Prospectus is issueddelivered (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act), not misleading, or, if for any other reason it shall be necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to comply with the Securities Act, to obtain notify the lifting thereof at Underwriters and, upon their request, to prepare and furnish without charge to the earliest possible moment.Underwriters and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Time of Sale Prospectus or Prospectus which will correct such statement or omission or effect such compliance;
(bd) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowProspectus, to furnish to you the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(ce) During To file promptly with the period mentioned Commission any amendment to the Registration Statement, the Time of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the Prospectus that may, in Section 5(fthe reasonable judgment of the Company or the Underwriters, be required by the Securities Act or is requested by the Commission;
(f) below, to To furnish to you 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 you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(dg) To obtain the Underwriters' consent, not to be unreasonably withheld or delayed, before taking, or failing to take, any action that would cause the Company to be required to file a free writing prospectus pursuant to Rule 433(d) of the Securities Act, other than the free writing prospectus(es) listed in Schedule 2 hereto;
(h) Not to take any action that would result in the an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under of 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.;
(ei) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser purchasers and (A) any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in writing in order to make the statements therein, in the light of the circumstancescircumstances under which they are made, not misleading, or (B) 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 fileor (C) if, 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 law, then the Company shall, with respect to clause (A) , (B) or (C), as the case may be, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter 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 (X) will not, in light of the circumstances under which they are made, when delivered conveyed to a prospective purchaser, be misleading or misleading, (Y) so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, Statement or (Z) so that the Time of Sale Prospectus, Prospectus as so amended or supplemented, will comply supplemented otherwise complies with applicable law., as the case may be;
(fj) If, during such period after the first date of the public offering of the Securities For so long as the Prospectus delivery of a prospectus (or in lieu of thereof the notice referred to in Rule 173(a) under of the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the initial offering or sale of the securities as contemplated Securities, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Time of Sale Prospectus or the Prospectus and any document incorporated by this Agreement reference in the Time of Sale Prospectus or in the Prospectus pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Underwriters and counsel for the Prospectus, in any jurisdiction where it is not now subject.Underwriters and obtain the consent of the Underwriters to such filing;
(hk) To As soon as practicable after the Effective Date, to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and (including, at the rules and regulations option of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale Company, Rule 158 of the Securities Act);
(1) Promptly from time to time, to take such action as described the Representative may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions in the Prospectus under United States as the heading “Use Representative may request and in such other jurisdictions as the Company and the Representative may mutually agree, and to comply with such laws so as to permit the continuance of Proceeds.”
(j) The sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided that, in connection therewith, the Company will cooperate with the Underwriter in arranging for the Securities to shall not be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by the Company with the Commission pursuant qualify as a foreign corporation or to Section 13(a), 13(c), 14 or 15(d) file a general consent to service of the Exchange Act.process in any jurisdiction;
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwritereach of the several Underwriters:
(a) The Company That, if the Effective Time is prior to the execution and delivery of this Agreement, it will comply file the Prospectus with the requirements Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by the Representative, subparagraph (4)) of Rule 430A under 424(b) within the Securities Act or time period prescribed by such Rule 430B under the Securities Act, as applicable, and will notify provide evidence satisfactory to the Underwriter promptly, and confirm Representative of such timely filing.
(b) To advise the notice in writing, (i) when Representative promptly of any post-effective amendment proposal to amend or supplement the registration statement as filed or the related prospectus or the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filedSupplement and not to effect such amendment or supplement without the consent of the Representative, (iito 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 for so long as the delivery of a prospectus is required in connection with the offering or sale of any Securities; to advise the Representative promptly of the receipt of any comments from the CommissionCommission and of the effectiveness of the Registration Statement (in each case if the Effective Time is subsequent to the execution and delivery of this Agreement) and of any amendment or supplement to the Registration Statement or the Prospectus or any Prospectus Supplement, (iii) or of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional informationtherefor, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; to advise the Representative promptly of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusprospectus relating to the Securities, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or jurisdiction and of the initiation or threatening of any proceedings proceeding for any of such purposes. The Company will promptly effect the filings necessary pursuant purpose; and to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort use best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification and, if any such stop order or order of suspension is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably objecttime.
(c) During To furnish promptly to the Representative and counsel for the Underwriters a signed copy of the registration statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith; and to deliver promptly without charge to the Representative such number of the following documents as the Representative may from time to time reasonably request: (i) conformed copies of the registration statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Standard Terms for Trust Agreements and any supplements thereto), (ii) each Preliminary Prospectus, the Prospectus, each Preliminary Prospectus Supplement, each Prospectus Supplement and any amended or supplemented Prospectus or Prospectus Supplement, and (iii) any document incorporated by reference in the Prospectus or any Prospectus Supplement (excluding exhibits thereto); that the Company consents to the use of the Preliminary Prospectus, the Prospectus, each Preliminary Prospectus Supplement and each Prospectus Supplement and any amendment or supplement thereto by the Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of any Securities contemplated herein and for such period mentioned in Section 5(f) belowof time thereafter as delivery of a prospectus relating to the Securities is required under the Securities Act; that the Company will provide or cause to be provided to the Underwriters, to furnish to you a copy of each proposed free writing prospectus to be prepared by or the Report on behalf of, used by, or referred to Form SR filed by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably objectas required by Rule 463 under the Securities Act.
(d) Not to take If the delivery of a prospectus is required at any action that would result time in the Underwriter or the Company being required to file connection with the Commission pursuant to Rule 433(d) under the sale of any Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement or any Prospectus Supplement as then on file, or if 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 Underwriter 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 light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) Prospectus Supplement is delivered to a purchaserdelivered, not misleading, or if for any other reason it is shall be necessary at such time to amend or supplement the Prospectus or any Prospectus Supplement or to file under the Exchange Act any document incorporated by reference in the Prospectus or any Prospectus Supplement in order to comply with applicable lawthe Securities Act or the Exchange Act, forthwith to preparenotify the Representative immediately thereof, and, subject to Section 4(b), to promptly prepare and file with the Commission and furnishCommission, at its own the Company's expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments an amended Prospectus or supplements Prospectus Supplement or a supplement to the Prospectus so or Prospectus Supplement which will correct such statement or omission or effect such compliance, or to file such document for incorporation by reference into the Prospectus or Prospectus Supplement.
(e) To file promptly with the Commission any amendment to the Registration Statement, the Prospectus or any Prospectus Supplement that may, in the statements judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission or advisable in connection with the distribution of the Securities.
(f) Prior to filing with the Commission (i) any Preliminary Prospectus or Preliminary Prospectus Supplement, (ii) any amendment to the Registration Statement or any Prospectus Supplement, (iii) any document incorporated by reference in the Prospectus as so amended or supplemented will not, in the light any Prospectus Supplement or (iv) any Prospectus or Prospectus Supplement pursuant to Rule 424 of the circumstances when Rules and Regulations, to furnish a copy thereof to the Prospectus (or in lieu thereof Representative and counsel for the Underwriters, and not to file any such document to which the Representative shall reasonably object after having been given reasonable notice referred to in Rule 173(a) under of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawproposed filing thereof.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as As soon as practicable to deliver to the Representative an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158).
(h) For so long as any Securities are outstanding, to furnish to the Representative copies of all public reports and all reports and financial statements furnished by the Company to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder.
(i) Promptly from time to time to take such action as the Representative may reasonably request to qualify the Securities of any Series for offering and sale under the securities laws of such political subdivisions of the United States of America and its territories and possessions as the 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 Securities of such Series; 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.
(j) The Company will apply the net proceeds from the sale of the Securities of each Series as described set forth under "Use of Proceeds" in the Prospectus under and the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTCrelevant Prospectus Supplement.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by To apply for the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) listing of the Securities of each Series on the New York Stock Exchange Actand to use all reasonable efforts to complete that listing, subject only to official notice of issuance, prior to the Closing Date for such Series.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify ; to use reasonable best efforts to cause the Underwriter promptly, and confirm Registration Statement to become effective; to give the Representatives notice in writing, (i) when of its intention to file any post-effective amendment to the Registration Statement shall become effectiveor amendment or supplement to the Prospectus; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of (ii1) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission Commission, the ISA or any other foreign or Israeli regulatory body, of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, Preliminary Prospectus or the Prospectus or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of (2) the initiation or threatening of any proceedings proceeding for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(bpurpose, or (3) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its reasonable best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) the Securities Act Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when 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 not to file any such document to which the Representatives or counsel for the Underwriters shall reasonably object in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.writing;
(gf) To endeavor timely file such reports pursuant to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions Exchange Act as you shall reasonably request; provided that are necessary in no event shall the Company be obligated order to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable 's shareholders an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after and its subsidiaries (which need not be audited) for the date of this Agreement which shall satisfy purposes of, and to provide the provisions benefits contemplated by, the last paragraph of Section 11(a) 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 Commission, the Nasdaq Stock Market Inc. or to any national securities exchange upon which the Ordinary Shares may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act and the rules and regulations 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 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 Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or as a dealer in securities, to become subject to taxation or to file a general consent to service of process in any such jurisdiction, and provided further that in connection therewith, the Company shall not be required to offer the Shares to the public in any jurisdiction outside of the United States or to prepare a separate disclosure document other than the Registration Statement or the Prospectus or such supplementary disclosure document as may be reasonably required for use with the Prospectus to form any Canadian offering memorandum that may be delivered in connection with the distribution of the Shares;
(i) The (A) For a period of 90 days from the date of the Prospectus, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (other than (x) the Shares to be sold hereunder; (y) pursuant to employee benefit plans or qualified stock option plans which, by their terms or by other written agreement, cannot be sold, pledged or otherwise disposed of within a period of 90 days from the date of the Prospectus without the prior written consent of Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters; or (z) 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 Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares (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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise, in each case without the prior written consent of Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters; (B) to cause each shareholder known to the Company will to own of record 5% or more of the Ordinary Shares outstanding (including any optionholder who, upon the exercise of all options held by such optionholder, would own of record 5% or more of the Ordinary Shares then outstanding), officer, director and each employee of the Company listed on Schedule 3 hereto to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in a form substantially similar to that attached as Exhibit 1 hereto or as otherwise agreed with the Representatives, pursuant to which each such person shall agree, subject to certain exceptions, not to, directly or indirectly, (1) offer for sale, sell, contract or grant any option to sell, pledge, transfer 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 at any time in the future of) any Ordinary Shares or securities convertible into or exchangeable for Ordinary 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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares 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. and Bear, Xxxxxxx & Co. Inc. on behalf of the Underwriters;
(j) To apply the net proceeds from the sale of the Securities Shares as described set forth in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.Prospectus;
(k) The Subject to compliance by the Underwriters with the final paragraph of Section 4 of this Agreement, to the extent that, and for as long as, the laws of Israel require any permit for approval by, or exemption by the ISA of the transaction contemplated hereby to be legally permitted and to remain effective, the Company will file promptly all reports obtain and maintain each such permit, approval or exemption valid and in full force and effect;
(l) In any definitive proxy suit in a court of competent jurisdiction (whether in the United States or information statementsany other jurisdiction) seeking enforcement of this Agreement or provisions of this Agreement, (i) if the plaintiffs therein seek a judgment in United States dollars, the Company will not interpose any defense or objection to or otherwise oppose judgment, if any, required being awarded in such currency, and (ii) if the plaintiffs therein seek to be filed have any judgment (or any aspect thereof) awarded in foreign currency linked, for the period from entry of such judgment until actual payment thereof in full has been made, to the changes in the foreign currency-United Sates dollar exchange rate, the Company will no interpose any defense or objection to or otherwise oppose inclusion of such linkage in any such judgment (except to comply with any applicable law); and the Company agrees that it will not initiate or seek to initiate any action, suit or proceeding, in Israel or in any other jurisdiction other than the United States, seeking damages or for the purpose of obtaining any injunction or declaratory judgment against the enforcement of, or a declaratory judgment concerning any alleged breach by the Company with of or other claim by you in respect of, this Agreement or any of your rights under this Agreement, including without limitation any action, suit or proceeding challenging the Commission pursuant enforceability of or seeking to Section 13(a), 13(c), 14 invalidate in any respect the submission by the Company hereunder to the jurisdiction of federal or 15(d) New York state courts or the designation of the Exchange Actlaws of the State of New York as the law applicable to this Agreement;
(m) If any payment of any sum due under this Agreement from the Company is made to or received by the Underwriters or any controlling person of any Underwriter in a currency other than freely transferable United States dollars, whether by judicial judgment or otherwise, the obligations of the Company under this Agreement shall be discharged only to the extent of the net amount of freely transferable United States dollars that the Underwriters or such controlling persons, as the case may be, in accordance with normal bank procedures, are able to lawfully purchase with such amount of such other currency; and to the extent that the Underwriters or such controlling persons are not able to purchase sufficient United States dollars with such amount of such other currency to discharge the obligations of the Company to the Underwriters of such controlling persons, as the case may be, the Company shall not be discharged with respect to such difference, and any such undischarged amount will be due as a separate obligation and shall not be affected by payment of or judgment being obtained for any other sums due under or in respect of this Agreement; and
(n) To take such steps as shall be necessary to ensure that the Company shall not become an "investment company" as defined in the Investment Company Act of 1940, as amended.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe Placement Agents:
(a) The Company will comply with (i) to prepare the requirements Prospectus in a form approved by the Placement Agent containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and 430C and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Actsecond business (2nd) day following the execution and delivery of this Agreement or, as if applicable, such earlier time as may be required by Rule 430A of the Rules and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, Regulations; (ii) to notify the Placement Agents immediately of the receipt of Company's intention to file or prepare any comments from supplement or amendment to any Registration Statement, the Commission, General Disclosure Package or to the Prospectus; (iii) of any request by to make no further amendment or supplement prior to the Commission for any amendment Closing Date to the Registration Statement or any amendment or supplement to the General Disclosure Package or Prospectus without the consent of the Representative, which consent shall not be unreasonably delayed or withheld; (iv) for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares to advise the Representative promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the General Disclosure Package or Prospectus has been filed and to furnish the Representative with copies thereof; (v) to file timely all reports and any definitive proxy or information statements required to be filed by the Company with the Commission and Nasdaq pursuant to Section 13(a), 15 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; (vi) to advise the Representative, promptly after the Company receives notices thereof, (x) of any request by the Commission to amend the Registration Statement or to amend or supplement the General Disclosure Package or Prospectus or for additional information, information and (ivy) of the issuance by the Commission Commission, of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto or any order by directed at any governmental Incorporated Document or regulatory authority any amendment or supplement thereto or any order preventing or suspending the use of any preliminary prospectusPreliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation institution or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission andfor the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information; and (vii) in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order andor of any order preventing or suspending the use of any Preliminary Prospectus, if any Issuer Free Writing Prospectus or the Prospectus or suspending any such order is issuedqualification, and promptly to use its best efforts to obtain the lifting thereof at the earliest possible momentwithdrawal of such order.
(b) Before amending or supplementing The Company represents and agrees that, unless it obtains the Registration Statementprior consent of the Representative, and the Time Representative represents and agrees that, unless it obtains the prior consent of Sale Prospectus the Company, it has not made and will not, make any offer relating to the Shares that would constitute a "free writing prospectus" as defined in Rule 405 under the Securities Act unless the prior written consent of the Representative or the Company, respectively, has been received (each, a "PERMITTED FREE WRITING PROSPECTUS"); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus[es], if any, included in Schedule A hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to created by the Company as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and not to use or refer 433 under the Securities Act applicable to any proposed free writing prospectus Issuer Free Writing Prospectus, including the requirements relating to which you reasonably object.
(d) Not to timely filing with the Commission, legending and record keeping and will not take any action that would result in the Underwriter Placement Agents 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 such Placement Agents that the Underwriter such Placement Agents otherwise would not have been required to file thereunder.
(ec) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a any time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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, relating to the Underwriter and Shares is required 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 light of the circumstances when be 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof thereof, the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur occurs or condition exist exists as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made when the Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), not misleading, or if it is necessary at any time to amend or supplement any Registration Statement or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus, to comply with the Securities Act or the Exchange Act, that the Company will promptly notify the Placement Agents thereof and upon their request will prepare an appropriate amendment or supplement or upon their request make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act in form and substance reasonably satisfactory to the Placement Agents which will correct such statement or omission or effect such compliance and will use its best efforts to have any amendment to any Registration Statement declared effective as soon as possible. The Company will furnish without charge to each Placement Agent and to any dealer in securities as many copies as such Placement Agent may from time to time reasonably request of such amendment or supplement. In case any Placement Agent is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) relating to the Shares nine (9) months or more after the later of (i) the latest effective date of the Registration Statement or (ii) the date of the Prospectus, the Company upon the request of such Placement Agent and at the expense of such Placement Agent will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act and deliver to such Placement Agent as many copies as such Placement Agent may request of such amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement the Prospectus General Disclosure Package in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthen prevailing, not misleading, or to make the statements therein not conflict with the information contained or incorporated by reference in the Registration Statement then on file and not superseded or modified, or if it is necessary at any time to amend or supplement the Prospectus General Disclosure Package to comply with applicable any law, forthwith to the Company promptly will either (i) prepare, file with the Commission (if required) and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter Placement Agents and to any other dealers upon request, either amendments an appropriate amendment or supplements supplement to the Prospectus General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the statements in the Prospectus General Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthen prevailing, be misleading or conflict with the Registration Statement then on file, or so that the Prospectus, as amended or supplemented, General Disclosure Package will comply with applicable law. The foregoing sentence does not apply to statements in or omissions from the General Disclosure Package in reliance upon, and in conformity with, written information furnished to the Company by the Placement Agents specifically for inclusion therein or information that is not furnished to the Company by the Placement Agent but should have been in order to make the General Disclosure Package not misleading, which information the parties hereto agree is limited to the Placement Agents' Information (as defined in Section 16).
(e) If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or will conflict with the information contained in the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company has promptly notified or will promptly notify the Placement Agent so that any use of the Issuer Free Writing Prospectus may cease until it is amended or supplemented and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, written information furnished to the Company by the Placement Agents specifically for inclusion therein, or information that is not furnished to the Company by the Placement Agent but should have been in order to make the Free Writing Prospectus not misleading, which information the parties hereto agree is limited to the Placement Agents' Information (as defined in Section 16).
(f) [intentionally omitted].
(g) To endeavor deliver promptly to qualify the Securities for offer Representative such number of the following documents as the Representative shall reasonably request (except where the documents have been filed electronically with the Commission via XXXXX): (i) conformed copies of the Registration Statement as originally filed with the Commission (in each case excluding exhibits), (ii) each Preliminary Prospectus, if any, (iii) any Issuer Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses (i), (ii), (iii) and sale under (iv) of this paragraph (g) to be made not later than 10:00 A.M., New York time, on the securities Business Day following the execution and delivery of this Agreement), (v) conformed copies of any amendment to the Registration Statement (excluding exhibits), (vi) any amendment or Blue Sky laws supplement to the General Disclosure Package or the Prospectus (the delivery of the documents referred to in clauses (v) and (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the Business Day following the date of such jurisdictions as you shall reasonably request; provided that amendment or supplement) and (vii) any document incorporated by reference in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified General Disclosure Package or take any action that would subject it to general service of process suits, other than those arising out the Prospectus (excluding exhibits thereto) (the delivery of the offering or sale documents referred to in clause (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the securities as contemplated by this Agreement and Business Day following the Prospectus, in any jurisdiction where it is not now subjectdate of such document).
(h) To make generally available to its stockholders and the Company’s security holders and to you Representative as soon as practicable practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of need not be audited) satisfying Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Commission thereunderCompany, Rule 158).
(i) To promptly take from time to time such actions as the Representative may reasonably request to qualify the Shares for offering and sale under the state securities, or blue sky, laws of such jurisdictions (including without limitation any post-filing requirements) as the Representative may reasonably designate and to continue such qualifications in effect for so long as required for the distribution of the Shares, and the Company will pay the fee of the NASD in connection with its review of the Offering, if applicable. The Company will apply the net proceeds from the sale 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 the Securities as described process in the Prospectus under the heading “Use of Proceedsany jurisdiction.”
(j) Not to directly or indirectly sell, assign, transfer, pledge, contract to sell of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of 90 days after the Closing Date without the prior written consent of the Representative, other than (1) any issuance or sale of equity or equity-linked securities relating to a joint venture, collaborative arrangement, strategic transaction, licensing transaction or other similar transaction; (2) any issuance to an employee, director, consultant, supplier, lender or lessor; (3) any issuance pursuant to the Company's equity incentive plans; and (4) any issuance pursuant to a pre-existing obligation of the Company to do so. The Company will cooperate with cause each of its executive officers that are listed in the Underwriter in arranging Company's Form 10-K/A for the Securities year ended December 31, 2006 and directors to furnish to the Representative, prior to the Closing Date, a letter, substantially in the form of Exhibit B attached hereto, provided, however, that the Company shall not be eligible liable for clearance and settlement through DTCthe failure of any such executive officers or directors to comply with such lock-up agreements.
(k) Prior to the Closing Date, to furnish to the Placement Agents, 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 or incorporated by reference in the General Disclosure Package or the Registration Statement.
(l) Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications or press releases in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative (which shall not be unreasonably withheld or delayed), unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. In such event, the Company shall consult with the Representative as to the contents of such press release.
(m) [intentionally omitted].
(n) [intentionally omitted].
(o) To engage and maintain, at its expense, a registrar and transfer agent for the Common Stock.
(p) To supply the Representative with copies of all correspondence to and from, and all related documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act.
(q) The Company will file promptly all reports and any definitive proxy or information statements, if any, required use its best efforts to be filed by maintain the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) listing of the Exchange ActShares on the Nasdaq Global Market at the Closing Date.
Appears in 1 contract
Samples: Placement Agent Agreement (Spectrum Pharmaceuticals Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps as it deems necessary delivery of this Agreement; to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort no further amendment or any supplement to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus Statement or the Prospectus during prior to the period mentioned in Section 5(f) belowlast Delivery Date except as provided herein; to advise the Representatives, to furnish to you a copy promptly after it receives notice thereof, of each such proposed amendment or supplement and not to file the time when any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter has been filed and to any dealer upon request, either amendments or supplements furnish the Representatives with copies thereof; to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 the Preliminary Prospectus, 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 or examination 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, Preliminary Prospectus or the Prospectus or 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) 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;
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(d) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the 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 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 that will correct such statement or omission or effect such compliance;
(e) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(f) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, 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;
(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 Representatives.
(h) To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; 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;
(i) 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 Canada and such other 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 (i) qualify as a foreign corporation 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 such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(j) As soon as practicable after the Effective Date and in any event not later than 12 months after the date hereof, 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;
(k) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus;
(l) Not to take any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Stock to facilitate the sale or resale of the Stock.
(m) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act;
(n) 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; and
(o) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (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 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 and 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 not issued under one of those plans), 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 option plans existing on the date hereof), (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, including any amendments, with respect to the registration of any shares of 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 (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters, and to cause each of the executive officers and directors of the Company to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 497(h) not later than Commission's close of Rule 430A under business on the Securities Act second business day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise you, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish you copies thereof; to advise you, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the issuance by the Commission of any order pursuant to Section 8(e) of the Investment Company Act, of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of an order pursuant to Section 8(e) of the Investment Company Act or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to you and your counsel a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto and any amendment to the Time of Sale Prospectus or Notification filed with the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During the period mentioned in Section 5(f) below, to furnish To deliver promptly to you a copy such number 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 following documents as you shall reasonably object.
request: (di) Not to take any action that would result in conformed copies of the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant and each amendment thereto (excluding exhibits other than this Agreement and the Subsequent Articles Supplementary, and the form of letter of representation to Rule 433(dThe Depository Trust Company filed as Exhibit (K)(10) under to the Securities Act Registration Statement) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable lawthe Acts, forthwith to preparenotify you and, upon your request, to prepare and furnish without charge to you and to any dealer in securities as many copies as you 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 and furnish, at its own expense, any amendment to the Underwriter and to Registration Statement or the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to Prospectus or any other dealers upon request, either amendments or supplements supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or you, be required by the Acts 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 497 of the Rules and Regulations ("Rule 497"), to furnish a copy thereof to you and your counsel and obtain your consent to the filing, which consent shall not be unreasonably withheld or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.delayed;
(gf) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s 's security holders and to deliver to you as soon as practicable an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of need not be audited), complying with Section 11(a) of the Securities Act (and, at the option of the Company, Rule 158 of the Rules and Regulations);
(g) For a period of two years from the rules Effective Date, to furnish to you copies of all materials furnished by the Company to its shareholders and regulations all public reports and all reports and financial statements furnished by the Company to the New York Stock Exchange, Inc., pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act, the Investment Company Act or any rule or regulation of the Commission thereunder.; provided, however, that the Company shall not be required to provide to you any such reports or similar forms that have been filed with the Commission by electronic transmission pursuant to XXXXX;
(h) Promptly from time to time, to take such action as you may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdiction as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the 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) The Company will To apply the net proceeds from the sale issuance of the Securities Stock as described in the Prospectus set forth under the heading “"Use of Proceeds.”" in the Prospectus;
(j) The Company will cooperate For a period of 180 days from the date hereof, not to, directly or indirectly, announce an offering of, or file a registration statement with the Underwriter Commission relating to senior securities (as defined in arranging the Investment Company Act) of the Company (other than the offering contemplated by this Agreement) or offer for the Securities sale, sell, pledge or otherwise dispose of any senior securities or sell or grant options, warrants or rights with respect to be eligible for clearance and settlement through DTC.any senior securities without your prior written consent; and
(k) The Company will file promptly all reports and any definitive proxy or information statementsuse its reasonable best efforts to cause the Stock, if anyprior to the Delivery Date, required to be filed assigned a rating of "Aa1" by the Company with the Commission pursuant to Section 13(a)Xxxxx'x Investors Service, 13(c)Inc. and "AA+" by Fitch, 14 or 15(d) Inc. as of the Exchange ActDelivery Date.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Final Prospectus in a form approved by the Underwriters and to file such Final Prospectus pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective ; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or to the Final Prospectus or any amended Prospectus shall have been filedexcept as permitted herein; to advise the Underwriters and the Selling Stockholders, (ii) promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Final Prospectus or for additional informationany amended Final Prospectus has been filed and to furnish the Underwriters and the Selling Stockholders with copies thereof; to advise the Underwriters and the Selling Stockholders, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Final Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned in Section 5(fUnderwriters such number of the following documents as each Underwriter shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits) under and (ii) each Preliminary Prospectus, the Securities Act Final Prospectus and any amended or supplemented Final Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 Final Prospectus as so then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Final Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Final Prospectus in order to comply with applicable lawthe Securities Act, forthwith to preparenotify the Underwriters and, upon its request, to prepare and furnish without charge to the Underwriters and to any dealer in securities as many copies as the Underwriters 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 and furnish, at its own expense, any amendment to the Underwriter and to Registration Statement or the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to Prospectus or any other dealers upon request, either amendments or supplements supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light reasonable judgment of the circumstances when Company or the Underwriters, 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 in lieu any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Underwriters and counsel for the Underwriters and obtain the consent of the Underwriters to in Rule 173(a) under the Securities Act) is delivered to a purchaserfiling, which consent shall not be misleading unreasonably delayed or so that the Prospectus, as amended or supplemented, will comply with applicable law.withheld;
(gf) To endeavor As soon as practicable after the Effective Date, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement (which shall satisfy the provisions of 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) Upon the request of the Underwriters, for a period of five (5) years following the Effective Date, to furnish to the Underwriters copies of all materials furnished by the Company to its 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 thereunder;
(h) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the 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 Shares; provided that in connection therewith, the Company shall not be required to qualify as a foreign 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 (x) the Shares, or (y) shares of Common Stock issued pursuant to employee benefit plans, stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights or upon conversion of shares of Common Stock), 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 benefit 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 Xxxx, Xxxx;
(j) To take such steps as shall be necessary to ensure that the Company shall not become an "investment company" or an entity "controlled" by an "investment company" as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.;
(ik) 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 Securities as described in Shares for the Prospectus purposes set forth under the heading “"Use of Proceeds.”" in the Prospectus;
(jm) Prior to the First Closing Date, the Company will make all filings required to list the Shares on the Nasdaq National Market and will effect and maintain such listing for at least five years from the date of this Agreement;
(n) The Company will cooperate with the Underwriter in arranging maintain a Transfer Agent for the Securities to be eligible for clearance and settlement through DTC.its Common Stock;
(ko) The Company will shall timely file promptly all reports and any definitive proxy such reports, forms or information statementsother documents as may be required from time to time, if anyunder the Securities Act, 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, 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; and
(p) 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply 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 requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Lead Managers and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus except as permitted herein; to advise the Lead Manager, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Lead Managers with copies thereof; to advise the Lead Manager, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Registration Statement, Lead Managers and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you International Managers a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Lead Managers in Section 5(fNew York City such number of the following documents as the Lead Managers shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable lawthe Securities Act, forthwith to preparenotify the Lead Managers and, upon its request, to prepare and furnish without charge to each International Manager and to any dealer in securities as many copies as the Lead Managers may from time to time 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 and furnish, at its own expense, any amendment to the Underwriter and to Registration Statements or the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to Prospectus or any other dealers upon request, either amendments or supplements supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Lead Manager, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Lead Managers and counsel for the International Managers and obtain the consent of the Lead Managers to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.any such filing;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Lead Managers an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Lead Managers (i) copies of all 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 or any rule or regulation of the Commission thereunder., (ii) copies of the publicly available reports filed by the Bank with the OTS and (iii) such other information as the International Managers may reasonably request regarding the Company and/or its subsidiaries;
(h) Promptly from time to time to take such action as the Lead Managers may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the 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;
(i) The For a period of 180 days from the date of the Prospectus, 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 or purchase 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 plans or other employee compensation plans existing on the date hereof, as described in the Prospectus), 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, as described in the Prospectus), without the prior written consent of Xxxxxx Brothers Inc. ("Xxxxxx Brothers") on behalf of the Lead Manager; and to cause each officer and director of the Company will to furnish to the Lead Manager, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the International Managers, 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 or purchase by any person at any time in the future of) any shares of Common Stock for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers on behalf of the Lead Manager;
(j) 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 International Managers and receive and consider its comments thereon, and to deliver promptly to the Lead Managers a signed copy of each report on Form SR filed by it with the Commission;
(k) To apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed Stock being sold by the Company with as set forth in the Commission pursuant Prospectus; and
(l) To take such steps as shall be necessary to Section 13(a), 13(c), 14 ensure that neither the Company nor any subsidiary thereof shall become an "investment company" or 15(d) an entity "controlled" by an "investment company" within the meaning of such terms under the Exchange 1940 Act.
Appears in 1 contract
Samples: International Underwriting Agreement (Flagstar Bancorp Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof and will prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second Business Day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to any Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 Statements or the Prospectus or for additional information with respect to such documents; 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, use promptly its reasonable best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine (9) months after the effective date of the Registration Statements when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 Registration Statements, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and each amendment thereto (in each case excluding exhibits), (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 City time, on the Business Day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen (18) months after the effective date of the Registration Statements (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company (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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company shall not be obligated to qualify as a foreign corporation 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 (5) years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) 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 by the Company 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. Such delivery requirements shall be deemed to be satisfied by the filing of any such documents on the Commission’s XXXXX filing system, with respect to any documents so filed.
(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 ninety (90) calendar days from the date of the Final Supplement without the prior written consent of the Representatives other than (i) the Company’s sale of the Stock hereunder or (ii) the granting of options or the issuance of shares of Common Stock 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, provided, however, that if (i) the Company issues an earnings release or material news or a material event relating to the Company occurs during the last 17 days of the lock-up period, or (ii) prior to the expiration of the lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the lock-up period, the restrictions imposed by this Agreement 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, unless such extension is waived, in writing, by the Representatives. The Company will cause each person or party listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, with certain mutually-agreed exceptions, for a period of ninety (90) calendar days from the date of the Prospectus, without the prior written consent of the Representatives.
(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 not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by the Securities Act, the Exchange Act, rules and regulations promulgated by Nasdaq or any other applicable law, rule or regulation.
(k) Until the Representatives shall have notified the Company of the completion of the resale of the Stock, the Company will not, and will use its reasonable efforts to 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 use its reasonable efforts 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.
(l) The Company shall at all times use commercially reasonable efforts to comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading “Use of Proceeds.”
(n) The Company shall manage its affairs and investments in such a manner as not to be or become an “investment company” within the meaning of the Investment Company Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Panacos Pharmaceuticals, Inc.)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statement Statements or to the Prospectus to which the Representative shall become effectivereasonably object by notice to the Company after a reasonable period to review; advise the Representative, promptly after it receives notice thereof, of the time when any amendment to either of the Registration Statements has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representative with copies thereof; advise the Representative, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representative thereof and upon the Representative’s request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach Underwriter and to any dealer in securities as many copies as the Representative 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, file the Company upon the request of the Representative and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 Representative and to counsel for the Underwriters copies of each of the manually signed 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 deliver promptly to the Representative in New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the Registration Statements as originally filed with the Commission and furnisheach amendment thereto (in each case excluding exhibits), at its own expense, to the Underwriter (ii) each Preliminary Prospectus and to the dealers (whose names and addresses you will furnish to the Companyiii) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that (not later than 10:00 A.M., New York time, on the statements in business day following the Prospectus as so execution and delivery of this Agreement) and any amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representative may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representative may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representative and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available 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 90 days from the date of the Prospectus without the prior written consent of SX Xxxxx other than (i) the Company’s security holders sale of the Stock hereunder, (ii) the issuance of shares pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans as in existence on the date hereof, (iii) the issuance of shares pursuant to the conversion or exercise of currently outstanding shares of preferred stock, options, warrants or rights described in the Prospectus, (iv) the issuance of stock options pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans as in existence on the date hereof, and (v) the issuance of warrants to you as soon as practicable an earning statement covering purchase not in excess of 297,000 shares of Common Stock pursuant to consulting arrangements. The Company will cause each officer, director and stockholder of the Company listed in Schedule B to this Agreement to furnish to the Representative, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after 90 days from the date of this Agreement which shall satisfy the provisions Prospectus, without the prior written consent of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunderSX Xxxxx.
(i) The Company will supply the Representative 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 Representative, 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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified in advance), without the prior written consent of the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law.
(l) 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 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 which would require the Prospectus to be amended or supplemented pursuant to Section 4(b).
(n) The Company shall, at all times prior to each of the Closing Dates and at any time when a prospectus relating to the Stock is required to be delivered under the Securities Act or the Exchange Act in connection with the sale of the Stock, comply with all applicable provisions of the Sxxxxxxx-Xxxxx Act in effect from time to time, except where such failure could not reasonably be expected to have a Material Adverse Effect.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of Proceeds”.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Second Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you U.S. Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each U.S. Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any Preliminary Prospectus, (ii) any amendment to either of the Registration Statements or supplement to the Prospectus or (or in lieu iii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of 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 of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Class A Common Stock 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;
(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;
(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 or purchase by any person at any time in the future of) any shares of Class A Common Stock or securities convertible into or exchangeable for Class A Common Stock (other than the shares of Class A Common Stock and 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), or sell or grant options, rights or warrants with respect to any shares of Class A Common Stock or securities convertible into or exchangeable for Class A 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 Class A Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of the Representatives; and to cause each officer, director and stockholder 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 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 or purchase by any person at any time in the future of) any shares of Class A Common Stock or securities convertible into or exchangeable for Class A 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 or ownership of such shares of Class A Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A 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 the Representatives;
(j) Prior to filing with the Commission any reports 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 such report filed by it with the Commission;
(k) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus;
(l) 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, as amended, and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Underwriter, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriter with copies thereof; to advise the Underwriter, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusprospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriter upon its request and to counsel for the Underwriter a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During the period mentioned in Section 5(f) below, To deliver promptly to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or such number of the Company being required to file following documents as the Underwriter shall request: (i) conformed copies of the Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each preliminary prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Shares and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary in the opinion of counsel to the Underwriter during such same period to amend or supplement the Prospectus in order to comply with applicable lawthe Securities Act, forthwith to preparenotify the Underwriter and, file with the Commission upon its request, to prepare and furnish, at its own expense, furnish without charge to the Underwriter and to any dealer in securities as many copies as the dealers Underwriter may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(whose names d) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and addresses you will Regulations, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing;
(f) As soon as practicable after the Effective Date, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the Effective Date occurs, to make generally available to the Company) 's security holders and to which Securities may have been sold by you on behalf deliver to the Underwriter an earnings statement of the Underwriter Company and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light its subsidiaries (which need not be audited) complying with Section 11(a) of the circumstances when Securities Act and the Prospectus Rules and Regulations (or in lieu thereof including, at the notice referred to in option of the Company, Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.158);
(g) To endeavor For a period of five years following the Delivery Date, to furnish to the Underwriter copies of all 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 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 Underwriter may reasonably request to qualify the Securities Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 Shares; provided except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, or to do business in any jurisdiction where it is not now so qualified or take any action that would subject it execute a general consent to general service of process suits, other than those arising out of process;
(i) To apply the offering or net proceeds from the sale of the securities Shares being sold by the Company as contemplated by this Agreement and set forth in the Prospectus, in any jurisdiction where it is not now subject.;
(hj) To make generally available take such steps as shall be necessary to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of ensure that neither the Company occurring after nor any subsidiary shall become an "investment company" within the date meaning of this Agreement which shall satisfy such term under the provisions Investment Company Act of Section 11(a) of the Securities Act 1940 and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.;
(k) The Company To not, directly or indirectly, take any action designed to or which will constitute or which might reasonably be expected to cause or result in the manipulation or stabilization of the price of the Shares;
(l) To file promptly all reports and any definitive proxy or information statements, if any, 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 ActAct for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares;
(m) To use its reasonable best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Shares are to occur; and
(n) To use its reasonable best efforts to file a registration statement pursuant to Section 12(b) of the Exchange Act to register the Shares thereunder, to list such Shares on the New York Stock Exchange and to list the common shares issuable upon conversion or redemption of the Shares on the New York Stock Exchange or such other national securities exchange on which the Company's common shares are then listed.
Appears in 1 contract
Samples: Underwriting Agreement (Centerpoint Properties Trust)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; make no further amendment to the Registration Statement or any supplement to the Prospectus to which the Representatives shall become effectivereasonably object by notice to the Company after a reasonable period to review, unless otherwise required by law; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(d) 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 as originally filed with the Commission and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 5:00 P.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and (iv) any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided PROVIDED that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin 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) 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 Stock is listed or quoted, in each case, other than those arising out of such documents as are available on the offering or sale of the securities as contemplated by this Agreement and the Prospectusinternet (e.g., in any jurisdiction where it is not now subjectat xxx.xxx.xxx).
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) Punk Xxxxxx, other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans as in existence on the date hereof or pursuant to currently outstanding options, warrants or rights or upon conversion of currently outstanding preferred stock. The Company has or will cause each officer, director and regulations shareholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of the Commission thereunderExhibit A hereto.
(i) The Company will supply the Representatives or their counsel 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 financial statements of the Company for any quarterly 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 other communication, directly or indirectly, or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified in advance), without the prior written consent of the Representatives, which shall not be unreasonably withheld or delayed unless in the opinion of counsel to the Company, and after notification to the Representatives, such press release or communication is required by law.
(l) In connection with the offering of the Stock, until Punk Xxxxxx shall have notified the Company of the completion of the resale of the Stock, the Company will not, and will use all commercially reasonable efforts to 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 Common Stock, or attempt to induce any person to purchase any Common Stock; and not to, and to use all commercially reasonable efforts 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 Common Stock.
(m) The Company will not take any action prior to the Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 4(b).
(n) The Company shall use reasonable efforts to at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”"
(jp) In connection with the Directed Share Program, the Company will ensure that 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 as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will cooperate pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Underwriter Directed Share Program, which shall not exceed $10,000, and all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in arranging for connection with the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly comply with all reports applicable securities and any definitive proxy or information statementsother applicable laws, if any, required to be filed by rules and regulations in each foreign jurisdiction in which the Company Directed Shares are offered in connection with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActDirected Share Program.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notProspectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock ; provided that in no event shall the -------- the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) XX Xxxxx other than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares 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; the Company will cause each officer, director and regulations shareholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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 Commission thereunderProspectus, without the prior written consent of XX Xxxxx.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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(b) hereof.
(n) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Samples: Underwriting Agreement (L90 Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Representatives with copies thereof; to advise the Representatives, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably objectexhibits filed therewith.
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (A) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) under each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the date hereof in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus that 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 or the Prospectus so that may, in the statements 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 or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, and not to file any such amendment or supplement to which the Representatives reasonably object.
(f) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(g) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as so a result of which any Issuer Free Writing Prospectus, as then amended or supplemented will notsupplemented, 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 when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities statement or Blue Sky laws of omission or effect such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectcompliance.
(h) To As soon as practicable after the Effective Date (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 after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Representatives (or make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Commission thereunderCompany, Rule 158 under the Securities Act).
(i) The Company will apply Promptly from time to time to take such action as the net proceeds from Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other 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 Securities Stock; provided that in connection therewith the Company shall not be required to (i) qualify as described a foreign corporation in the Prospectus under the heading “Use any jurisdiction in which it would not otherwise be required to so qualify; (ii) file a general consent to service of Proceedsprocess in any such jurisdiction; or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.”
(j) The Company will cooperate For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device 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 exercisable or exchangeable for Common Stock (other than the Stock and shares of Common Stock and securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the most recent Preliminary 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 Underwriter grant of options pursuant to employee benefit plans, option plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in arranging for the Securities most recent Preliminary Prospectus), (B) 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 (A) or clause (B) is to be eligible for clearance settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of 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 (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc., on behalf of the Underwriters, and settlement through DTCto cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(l) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement.
(m) Except as disclosed in the most recent Preliminary Prospectus, the Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(n) The Company will file promptly do and perform all reports and any definitive proxy things required or information statements, if any, required necessary to be filed done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Company with Underwriters’ obligations hereunder to purchase the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActStock.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you U.S. Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall reasonably request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 prior to file thereunder.
(e) If the expiration of nine months after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each U.S. Underwriter and to any other dealers 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 U.S. 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 of the Primary Registration Statement, upon requestthe request of the Representatives but at the expense of such U.S. Underwriter, either amendments to prepare and deliver to such U.S. Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any amendment to the Registration Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission either of the Registration Statements 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 not to file any such document to which the Representatives shall reasonably object after having been given reasonable notice of the proposed filing thereof;
(or in lieu thereof f) As soon as practicable after the notice referred to in Rule 173(a) under Effective Date of the Securities Act) is delivered to a purchaser, be misleading or so Primary Registration Statement (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have until at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of 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 of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Common Stock 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;
(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 or purchase 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 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 (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 Lehmxx Brothers Inc.; and to cause each officer and director of the Company to furnish to Lehmxx Xxxthers Inc., 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 Lehmxx Xxxthers Inc.;
(j) 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;
(k) 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 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 and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Wesco International Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. To prepare the requirements of Prospectus in a form approved by Lehman Brothers Inc. and to file such Prospectus purxxxxx to Rule 430A 424(b) under the Securities Act or not later than 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 430B 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 Underwriters, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not the Underwriters with copies thereof; to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly timely all reports and any definitive proxy or information statements, if any, 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.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 Corporate PIES; to advise the Underwriters, 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 Corporate PIES 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;
Appears in 1 contract
Samples: Underwriting Agreement (Sierra Pacific Resources Capital Trust Ii)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities U.S. Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you U.S. Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the U.S. Stock and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each U.S. Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.any such filing;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives (i) copies of all 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 or any rule or regulation of the Commission thereunder., (ii) copies of the publicly available reports filed by the Bank with the OTS and (iii) such other information as the U.S. 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 U.S. 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;
(i) The For a period of 180 days from the date of the Prospectus, 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 or purchase by any person at any time in the future of) any shares of Common Stock (other than the U.S. Stock and shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof, as described in the Prospectus), 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, as described in the Prospectus), without the prior written consent of Xxxxxx Brothers Inc. ("Xxxxxx Brothers") on behalf of the Representatives; and to cause each officer and director of the Company will 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, 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 or purchase by any person at any time in the future of) any shares of Common Stock for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers on behalf of the Representatives;
(j) 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;
(k) To apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed U.S. Stock being sold by the Company with as set forth in the Commission pursuant Prospectus; and
(l) To take such steps as shall be necessary to Section 13(a), 13(c), 14 ensure that neither the Company nor any subsidiary thereof shall become an "investment company" or 15(d) an entity "controlled" by an "investment company" within the meaning of such terms under the Exchange 1940 Act.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus Supplement in a form approved by the Underwriters and to file such Prospectus Supplement pursuant to Rule 430A 424(b) under the Securities Act or 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when ; to make no further amendment or any post-effective amendment supplement to the Registration Statement shall become effectiveor to the Prospectus prior to the Delivery Date except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Supplement or any amended Prospectus shall have Supplement has been filedfiled and to furnish the Underwriters with copies thereof; to advise the Underwriters, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus Supplement or the Prospectus Supplement, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto and (ii) under each Preliminary Prospectus Supplement, the Securities Act Prospectus Supplement and any amended or supplemented Prospectus Supplement; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement Supplement as then on file, or if 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 Underwriter 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 light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) Supplement is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus Supplement in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Underwriters and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplements supplemented Prospectus Supplement which will correct such statement or omission or effect such compliance;
(c) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus Supplement or any supplement to the Prospectus so Supplement that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Underwriters, be required by the Securities Act or requested by the Commission;
(d) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus Supplement, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent (or in lieu thereof which will not be unreasonably withheld) of the notice referred Underwriters to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(ge) To endeavor Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions in the United States as you shall reasonably requestthe 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 no event shall connection therewith the Company shall not be obligated required to qualify as a foreign corporation, to do business in any jurisdiction where it is not now so qualified become subject to taxation or take any action that would subject it to file a general consent to service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.jurisdiction;
(hf) To As soon as practicable after the Effective Date, to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Commission thereunder.Company, Rule 158);
(ig) The Company will To apply the net proceeds from the sale of the Securities Stock being sold by the Company as described set forth in the Prospectus under Supplement;
(h) Not to take any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the heading “Use price of Proceedsthe Stock to facilitate the sale or resale of the Stock.”
(i) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act;
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive proxy or information statements, if any, 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 ActAct 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;
(k) For a period of 60 days from the date of the Prospectus Supplement, the Company agrees 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 the Stock offered pursuant to this Agreement and Common Stock issued pursuant to employee benefit plans, 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 Common Stock 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 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 the Representatives; and to cause each of the executive officers and directors of the Company to furnish to the Underwriters prior to the Closing Time, a letter or letters pursuant to which each such person shall agree not to, directly or indirectly, (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 Common Stock or securities convertible into or exchangeable for Common Stock (other than (i) transactions with the Company, (ii) the sale of Common Stock pursuant to an arrangement with a broker-dealer that provides the equivalent of a cashless exercise of options or (iii) sales of Common Stock which, in the aggregate for all directors, executives and officers of the Company, do not exceed 150,000 shares) or (B) 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 Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 60 days from the date of the Prospectus Supplement, without the prior written consent of the Representatives; and
(l) Prior to the First Delivery Date, to apply for listing of the Stock on the New York Stock Exchange and to use its best efforts to complete that listing, subject only to official notice of issuance and evidence of satisfactory distribution, prior to the First Delivery Date.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 as 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 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 and each amendment thereto (in each case excluding exhibits), (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 City time, on the business day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the effective date of the 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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign 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) 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 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx other than the Company's sale of the Stock hereunder and the issuance of shares 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.
(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 the Closing Date, 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 Statement and the Prospectus.
(k) Prior to the Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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(b);
(n) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statement shall become effectiveor to the Prospectus except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statement as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act Prospectus (not later than 10:00 A.M., New York City time, on the 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 day following the date of such amendment or supplement); and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
Stock (eor any other securities relating thereto) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the Underwriters and obtain the consent of the Representatives to in Rule 173(athe filing (which consent may not be unreasonably withheld);
(f) under As soon as practicable after the Securities Act) is delivered to a purchaser, be misleading or so Effective Date (it being understood that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify Company shall have until at least 410 days after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out end of the offering or sale of the securities as contemplated by this Agreement and the ProspectusCompany's current fiscal quarter), in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of 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) Until completion of the distribution contemplated hereby and 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 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 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 jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not to, directly or indirectly (whether any transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise) (1) offer for sale, sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange Act) 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 (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned in accordance with the rules and or regulations of the Commission thereunder.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 or substantially similar securities (other than the Stock, the shares of Common Stock to be issued concurrently with the closing of this offering upon the mandatory conversion of the Company's outstanding preferred stock and shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or under currently outstanding options, warrants or rights) 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 under option plans existing on the date hereof), (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 Bear, Xxxxxxx & Co. Inc.; and to cause each officer and director of the Company and certain stockholders of the Company who beneficially own in the aggregate over 75% of the Company's outstanding share capital to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, in the form of Annex A hereto (a "Lock-up Agreement");
(j) To deliver a 180-day lock-up request to (i) The each of the stockholders of the Company will parties to the Amended and Restated Purchasers Rights Agreement by and among the Company and certain purchaser of capital stock of the Company, dated as of March 30, 2000 (the "Purchasers Rights Agreement"), pursuant to Section 2.10 of the Purchasers Rights Agreement, which request shall be delivered jointly on behalf of the Company, Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. and (ii) all employees of the Company who have been granted options under the Company's employee Benefits Plans;
(k) Prior to the Effective Date, to apply for inclusion of the Stock in the National Market System and to use its best efforts to complete that process, subject only to official notice of issuance, prior to the First Delivery Date;
(l) To apply the net proceeds from the sale of the Securities Stock being sold by the Company as described set forth in the Prospectus Prospectus;
(m) To take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become an "investment company" within the meaning of such term under the heading “Use of Proceeds.”Investment Company Act;
(jn) The During the period of 180 days from the date of the Prospectus, to obtain an executed letter in the form of Annex A hereto from each officer and director who has not previously executed such a letter and to use all reasonable efforts to obtain from each other stockholder of the Company will cooperate with who exercises options to purchase shares of Common Stock and who, upon any such exercise, would beneficially own 1% or more of the Underwriter in arranging Company's outstanding share capital, an executed Lock-up Agreement;
(o) 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 stabilization or manipulation of the price of the shares of Common Stock (including the Stock) to facilitate the sale or resale of such shares; and
(p) To take such steps as shall be necessary to ensure that the Directed Shares are restricted as required by the NASD or the rules and regulations of the NASD from sale, transfer, assignment, pledge or hypothecation for a period of three months following the Securities to be eligible for clearance and settlement through DTCdate of this Agreement.
(kq) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by During the Company with period of 180 days from the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) date of the Exchange ActProspectus, not to amend or consent to, or otherwise permit the amendment of Section 2.10 of the Purchasers Rights Agreement or the lock-up or similar provisions of the Company's employee benefit and stock option plans.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof, prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof, (ii) of advise the receipt of any comments from the CommissionRepresentatives, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional informationpromptly after it receives notice thereof, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will 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) 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to and (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M. New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented Prospectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
(e) The Company will notmake generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction;
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(a) SG Cxxxx xxxer than the Company's sale of the Securities Act Stock hereunder and the rules issuance of shares pursuant to employee benefit plans, stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights. The Company will cause each officer, director and regulations stockholder listed in Schedule C to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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 Commission thereunderProspectus, without the prior written consent of SG Cxxxx.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law or official mandate of the Nasdaq Stock Market.
(l) In connection with the offering of the Stock, until SG Cxxxx xxxll 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 Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form reasonably approved by the Underwriter and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the Commission's close of business on the second business day follow- ing the execution and delivery of this Agreement; to make no further amendment or Rule 430B under supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Underwriter, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Under- writer with copies thereof; to advise the Underwriter, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission Commis- sion of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusthe Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or sxxxxx- xxxxxxx of the Registration Statement or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriter and to counsel for the Underwriter a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During the period mentioned in Section 5(f) below, To deliver promptly to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or such number of the Company being required to file following documents as the Underwriter shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission pursuant and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii) the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time prior to Rule 433(d) under the Securities Act a free writing prospectus prepared by expiration of nine months after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Stock and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary in the reasonable opinion of counsel for the Underwriter during such same period 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 applicable lawthe Securities Act or the Exchange Act, forthwith to preparefile, upon the request of the Underwriter, such document and to prepare and furnish without charge to the Under- writer and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the 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 the Underwriter's request but at its expense, to prepare and deliver to the Underwriter as many copies as the Underwriter 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 or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amend- ment to the Registration Statement or supplement to the Prospec- tus, any document incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and furnishRegula- tions, at its own expense, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain consent of the Underwriter to the dealers filing, which consent shall not be unreasonably withheld;
(whose names and addresses you will furnish f) As soon as practicable after the Effective Date, but in any event not later than 60 days after the end of its fiscal quarter in which the first anniversary date of the Effec- tive Date occurs, to make generally available to the Company) 's security holders and to which Securities may have been sold by you on behalf deliver to the Underwriter an earning statement of the Underwriter Company and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light its subsidiaries (which need not be audited) complying with Section 11(a) of the circumstances when Securities Act and the Prospectus Rules and Regulations (or in lieu thereof including, at the notice referred to in option of the Company, Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.158);
(g) To endeavor For a period of five years following the Effective Date, to furnish to the Underwriter copies of all 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 or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 except that in no event shall the Company be obligated in connection therewith to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to income taxation in such jurisdiction, to qualify as a foreign corporation in such jurisdiction, or to exe- cute a general consent to service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.process;
(i) The Company will apply the net proceeds For a period of 90 days from the sale date of the Securities Pro- spectus, not to offer for sale, sell or otherwise dispose of, directly or indirectly, any shares of Common Stock (other than the Stock, or Common Stock issuable pursuant to the Company's existing employee benefit and director plans or to redeem Units and/or Unit Voting Stock), or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options or other rights with respect to Common Stock pursuant to the Company's existing employee benefit and director plans or the issuance of Units and/or Unit Voting Stock in connection with the acquisition of property, directly or indi- rectly, by the Operating Partnership), otherwise than in accor- dance with this Agreement or as described contemplated in the Prospectus under Prospectus, without the heading “Use prior written consent of Proceeds.”the Underwriter, which consent shall not be unreasonably withheld;
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive proxy or information statements, if any, 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 ActAct for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock.
(k) To use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 1996, as a REIT under the Code;
(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 1940 Act and the rules and regulations of the Commission thereun- der.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of Rule 430A under the Securities Act Rules and Regulations not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to either Registration Statement or to the Securities ActProspectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use its best efforts to obtain the lifting thereof at the earliest possible momentwithdrawal of such order promptly.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus that will correct such statement or omission or otherwise effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus 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 furnish promptly upon any filing after the date hereof, 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 signed copies of all consents and photocopies of exhibits filed therewith.
(d) 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 and furnisheach amendment thereto (in each case excluding exhibits); (ii) each Preliminary Prospectus; (iii) the Prospectus (not later than 10 A.M., at its own expenseEastern standard time, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter business day following the execution and to delivery of this Agreement) and (iv) any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (not later than 10 A.M., Eastern standard time, on the business day following the date of such amendment or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawsupplement).
(ge) To endeavor The Company will make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and with the Rules and Regulations (including, at the option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall neither the Company nor any Subsidiary shall be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver to the Representatives and, upon request, to each of the offering other Underwriters (i) as soon as they are available, copies of all reports or sale 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 as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Common Stock is not now subjectlisted or quoted.
(h) To make generally available The Company will not directly or indirectly offer, sell, assign, transfer, pledge, contract to the Company’s security holders and to you as soon as practicable an earning statement covering 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 at least twelve months beginning with the first fiscal quarter of the Company occurring after 180 days from the date of this Agreement which shall satisfy the provisions Prospectus without the prior written consent of Section 11(aXX Xxxxx, other than: (i) the sale of the Securities Act Firm Stock to be sold by the Company hereunder, (ii) the issuance of shares of Common Stock pursuant to existing stock option plans or outstanding options or warrants, all to the extent described in the Prospectus, (iii) the issuance of shares of Common Stock to Community Health Centers Network, L.P. in the event that it exercises its right to cause the Company to acquire its equity interest in Superior HealthPlan, Inc. in exchange for such shares of Common Stock, all as contemplated by the Stock Purchase and Recapitalization Agreement dated September 10, 2001 by and among Community Health Centers Network, L.P., Superior HealthPlan, Inc., the rules Company and regulations TACHC GP, Inc. (as such agreement is in effect on the date hereof), or (iv) the issuance of shares of Common Stock in connection with one or more acquisitions by the Company of assets, capital stock or business of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or with the entering into of one or more collaboration agreements with unaffiliated entities, provided that, in the case of this clause (iv), (A) the aggregate number of shares so issued pursuant to all such acquisitions and agreements shall not exceed 500,000 and (B) each person or entity receiving any shares of Common Stock pursuant to any such acquisition or agreement shall enter into a letter agreement with terms (including a lock-up period continuing for 180 days from the date of the Commission thereunderProspectus) substantially equivalent to the letter agreements delivered to the Representatives pursuant to Section 2(I)(ii) hereof.
(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 consolidated 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 other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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, (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 not take any action prior to any Option Closing Date that would require the Prospectus to be amended or supplemented pursuant to Section 4(I)(b) hereof.
(n) The Company will apply the its net proceeds from of the sale of the Securities Firm Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”"
(jo) The Company will cooperate comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Stock is offered in connection with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTCDirected Stock Program.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply prepare a Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; prepare the Prospectus Supplement in a form approved by the Representatives and file such Prospectus Supplement pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of filed and furnish the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Supplement 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 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 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, use promptly all commercially reasonable efforts to obtain its withdrawal.
(b) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Stock that would constitute an "issuer free writing prospectus" (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a "free writing prospectus" (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act. The Company agrees that (i) it has treated, and will treat, as the case may be, each free writing prospectus as an issuer free writing prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any free writing prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(c) If at any time prior to the expiration of nine months after the date of the Prospectus Supplement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time during such nine month period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon its request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 date of the Prospectus Supplement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company shall promptly furnish to each of the Representatives and 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.
(e) The Company shall promptly deliver 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 and each amendment thereto (in each case excluding exhibits); (ii) each Preliminary Prospectus; (iii) the Prospectus Supplement (not later than 10:00 a.m., New York time, on 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 City time, on the business day following the date of such amendment or supplement); and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(f) The Company shall make generally available to its shareholders as soon as practicable, but in any event not later than eighteen (18) months after the effective date of the Initial Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company (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 under the Securities Act).
(g) The Company shall promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided, 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.
(h) During the five (5) year period commencing upon the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to shareholders and (ii) as soon as they are available, copies of any reports and financial statements furnished or filed by the Company 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. Such delivery requirements shall be deemed satisfied by the filing of any such documents on the Commission's EDGAR filing system, with respect xx xny documents so filed.
(i) 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 90 days from the date of the Prospectus Supplement (the "Lock-Up Period") without the prior written consent of SG Cowen other than the Comxxxx'x xxxx xx the Stock hereunder and the issuance of shares pursuant to (i) employee benefit plans, equity incentive plans or other employee compensation plans as in existence on the date hereof and as described in the Prospectus or (ii) currently outstanding options, warrants or rights; provided, however, that if (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless SG Cowen waives, in writing, such xxxxxxxon. The Company will cause each officer and director listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit A hereto.
(j) The Company will supply the Representatives and their counsel 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.
(k) 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 Statement and the Prospectus.
(l) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives (which consent shall not be unreasonably withheld or delayed), unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(m) In connection with the offering of the Stock, until SG Cowen shall have notifiex xxx Xxmpany of the completion of the resale of the Stock, the Company will not, and will use its best reasonable efforts to 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 Company's Common Stock.
(n) The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from xxxx xx xxxx.
(o) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
Appears in 1 contract
Samples: Underwriting Agreement (Oxigene Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriter:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, covenants and will notify the Underwriter promptly, and confirm the notice in writing, agrees:
(i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Underwriter and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps as it deems necessary delivery of this Agreement; to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort no further amendment or any supplement to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus Statement or the Prospectus during prior to the period mentioned in Section 5(f) belowDelivery Date except as permitted herein; to advise the Underwriter, to furnish to you a copy promptly after it receives notice thereof, of each such proposed amendment or supplement and not to file the time when any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 it is necessary the Prospectus has been filed and 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 furnish the Underwriter and with copies thereof; 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 Underwriter, 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 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 or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or 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 the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Underwriter, without charge, such number of the following documents as the Underwriter shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock 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 Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the 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;
(iv) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(v) For so long as a prospectus is required in connection with the offering or sale of the Stock, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing (which consent shall not be unreasonably withheld);
(vi) 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;
(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 Underwriter and, upon its request, to file such document and to 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;
(viii) As soon as practicable and, in any event, no later than 15 months after the Effective Date, to make generally available to the Company’s security holders and to deliver to the 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);
(ix) To the extent requested by the Underwriter, for a period of three years following the Effective Date, to furnish to the Underwriter copies of all 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 or any rule or regulation of the Commission thereunder;
(x) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the 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 in which it is not so qualified or subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject;
(xi) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (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 the Common Stock and securities convertible into or exchangeable for Common Stock issued pursuant to the 2004 Plan), 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 Common Stock or securities convertible into or exchangeable for Common Stock pursuant to the 2004 Plan), (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, including any amendments, with respect to the registration of any 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 the Underwriter; and to cause each of the Company’s directors as well as the officers and security holders of the Company listed on Schedule 2 hereto to furnish to the Underwriter, prior to the Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto;
(xii) To apply the net proceeds from the sale of the Stock as set forth in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an “investment company” as defined in the Investment Company Act;
(xiv) To comply, in all material respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated thereunder.
(b) The Underwriter agrees that the Underwriter shall not include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, (“Permitted Issuer Information”); provided that 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; to prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Second Delivery Date except as permitted herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to each of the Registration Statement, Representatives and to counsel for the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you Underwriters a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(fNew York City such number of the following documents as the Representatives shall request: (i) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (ii) under each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time request of an amended or supplements 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 Statements or the Prospectus or any supplement to the Prospectus so that may, in the statements 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 (i) any amendment to either of the Registration Statements or supplement to the Prospectus or any document incorporated by reference in the Prospectus as so amended or supplemented will not, in the light (ii) any Prospectus pursuant to Rule 424 of the circumstances when Rules and Regulations, to furnish a copy thereof to the Prospectus Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, which consent shall not be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.unreasonably withheld);
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of Section 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 of the Primary Registration Statement, to furnish to the Representatives copies of all 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 or automatic quotation system upon which the Common Stock 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;
(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 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 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 Stock) 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 except for (i) the issuance of shares of Common Stock in connection with acquisitions where the person receiving the shares agrees to abide by this restriction, (ii) the grant of employee stock options and (iii) the issuance of shares of Common Stock to non-employee directors, 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 to furnish to the Representatives, prior to the First Delivery Date, letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall represent that he has not and agrees that he will not, 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 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 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.;
(j) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus; and
(k) 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.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Representatives 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will furnish promptly to 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) 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 and each amendment thereto (in each case excluding exhibits), (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 document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) The Company will make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the effective date of the 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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; PROVIDED that the Company and its subsidiaries shall not be obligated to qualify as foreign 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) 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 by the Company 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, in each case other than such documents as are available on the internet.
(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 until after March 12, 2002without the prior written consent of XX Xxxxx other than: (i) the Company's sale of the Stock hereunder and the issuance of shares 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 or warrants, or rights pursuant to The Rights Agreement dated December 13, 2000 by and between the Company and Equiserve Trust Company, N.A. or upon the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof, or (ii) the issuance by the Company of shares of Common Stock as consideration for mergers, acquisitions, other business combinations, or strategic alliances, occurring after the date of this Agreement, provided that each recipient of shares pursuant to this clause (ii) agrees that all such shares remain subject to restrictions substantially similar to those contained in this subsection.
(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 the Closing Date, 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 monthly periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(k) Prior to the Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representative, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 use its best efforts to 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, except in compliance with Regulation M; 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 apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
Appears in 1 contract
Samples: Underwriting Agreement (Transkaryotic Therapies Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriterfurther agrees, for the benefit of each of the Underwriters:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriters which approval shall not be unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or not later than 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 430B 430A(a)(3) under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective ; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date or any amended to the Time of Sale Prospectus shall have been filedprior to its first use on the date hereof, (ii) except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the receipt of any comments from the Commission, (iii) of any request by the Commission for time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed with the Commission and to furnish the 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 additional informationso long as the delivery of a prospectus is required by applicable law in connection with the offering or sale of the Securities; to advise the Underwriters, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus, the Time of Sale Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Time of Sale Prospectus or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent 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 order qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed or facsimile signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) each Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus and any amended or supplemented Preliminary Prospectus, Time of Sale Prospectus or Prospectus, and, if the delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required at any time after the Effective Time in connection with the offering or sale of the Securities and, if at such time, any events shall have occurred as a result of which the Time of the Sale Prospectus or the Prospectus, as the case may be, 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 Time of Sale Prospectus or Prospectus is issueddelivered (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act), not misleading, or, if for any other reason it shall be necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to comply with the Securities Act, to obtain notify the lifting thereof at Underwriters and, upon their request, to prepare and furnish without charge to the earliest possible moment.Underwriters and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Time of Sale Prospectus or Prospectus which will correct such statement or omission or effect such compliance;
(bd) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowProspectus, to furnish to you the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(ce) During To file promptly with the period mentioned Commission any amendment to the Registration Statement, the Time of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the Prospectus that may, in Section 5(fthe reasonable judgment of the Company or the Underwriters, be required by the Securities Act or is requested by the Commission;
(f) below, to To furnish to you 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 you the Underwriters reasonably object., in each case, other than the free writing prospectus(es) identified on Schedule 2;
(dg) To obtain the Underwriters’ consent, not to be unreasonably withheld or delayed, before taking, or failing to take, any action that would cause the Company to be required to file a free writing prospectus pursuant to Rule 433(d) of the Securities Act, other than the free writing prospectus(es) listed in Schedule 2 hereto;
(h) Not to take any action that would result in the an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under of 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.;
(ei) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser purchasers and (A) any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in writing in order to make the statements therein, in the light of the circumstancescircumstances under which they are made, not misleading, or (B) 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 fileor (C) if, 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 law, then the Company shall, with respect to clause (A) , (B) or (C), as the case may be, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter 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 (X) will not, in the light of the circumstances under which they are made, when delivered conveyed to a prospective purchaser, be misleading or misleading, (Y) so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, Statement or (Z) so that the Time of Sale Prospectus, Prospectus as so amended or supplemented, will comply supplemented otherwise complies with applicable law., as the case may be;
(fj) If, during such period after the first date of the public offering of the Securities For so long as the Prospectus delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) under of the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the initial offering or sale of the securities as contemplated Securities, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Time of Sale Prospectus or the Prospectus and any document incorporated by this Agreement reference in the Time of Sale Prospectus or in the Prospectus pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Underwriters and counsel for the Prospectus, in any jurisdiction where it is not now subject.Underwriters and obtain the consent of the Underwriters to such filing;
(hk) To As soon as practicable after the Effective Date, to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Underwriters an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 of the Securities Act);
(l) Promptly from time to time, to take such action as the Representatives may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions in the United States as the Representatives may request and in such other jurisdictions as the Company and the rules Representatives may mutually agree, and regulations 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 Commission thereunder.Securities; 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;
(im) The 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 will in connection with the initial offering of the Securities (except after consultation with the Underwriters and as may be permitted by under federal securities laws);
(n) To use its best efforts to cause the Securities to be accepted for clearance and settlement through the facilities of DTC;
(o) To execute and deliver the Supplemental Indenture in form and substance reasonably satisfactory to the Underwriters;
(p) To apply the net proceeds from the sale issuance of the Securities as described in the Prospectus set forth under the heading “Use of Proceeds.”” in the Prospectus;
(jq) The To take such steps as shall be necessary to ensure that the Company will cooperate and its Significant Subsidiaries shall not become an “investment company” as defined in the Investment Company Act;
(r) To take all reasonable action necessary to enable the rating agencies referenced in Section 7(l) to provide their respective ratings of the Securities; and
(s) For a period beginning from the date of this Agreement and continuing through the Delivery Date not to (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities of the Company with a maturity of three years or longer or any other securities that are substantially similar to the Underwriter Securities or any securities convertible into or exercisable or exchangeable for such debt securities of the Company (ii) enter into any swap or other agreement that transfers, in arranging for whole or in part, any of the economic consequences of ownership of any of the Securities or such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of such debt securities of the Company or such other securities, in cash or otherwise without the prior written consent of the Underwriters, which shall not be unreasonably withheld or delayed, except that the foregoing restrictions shall not apply to the issuance of the Securities to be eligible for clearance and settlement through DTCsold hereunder.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 430A 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; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistra- tion Statement or to the Prospectus except as permitted herein; to advise the Underwriter, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriter with copies thereof; to advise the Underwriter, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending suspend- ing the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriter and to counsel for the Underwriter a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During the period mentioned in Section 5(f) below, To deliver promptly to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or such number of the Company being required to file following documents as the Underwriter shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission pursuant and each amendment thereto (in each case exclud- ing exhibits other than this Agreement and 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 prior to Rule 433(d) under the Securities Act a free writing prospectus prepared by expiration of nine months after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Stock and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue state- ment of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleadingmislead- ing, or or, if for any other reason it is shall be necessary in the reasonable opinion of counsel for the Underwriter during such same period 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 applicable lawthe Securities Act or the Exchange Act, forthwith to preparenotify the Underwriter and, upon its request, to file with the Commission such document and furnish, at its own expense, to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the dealers Underwriter may from time to time reasonably request of an amended Prospec- tus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the 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 their request but at their expense, to prepare and deliver to the Underwriter as many copies as the Underwriter may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(whose names d) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and addresses you will Regulations, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, but in any event not later than 60 days after the end of its 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 which Securities may have been sold by you on behalf deliver to the Underwriter an earning statement of the Underwriter Company and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light its subsidiaries (which need not be audited) complying with
Section 11(a) of the circumstances when Securities Act and the Prospectus Rules and Regulations (or in lieu thereof includ- ing, at the notice referred to in option of the Company, Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.158);
(g) To endeavor Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe 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 except that in no event shall the Company be obligated in connection therewith to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to income taxation in such jurisdiction, to qualify as a foreign corporation in such jurisdiction, or to execute a general consent to service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.process;
(h) To make generally available to Without the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter prior written consent of the Company occurring Underwriter, it will not, during the period ending 90 days after the date of this Agreement the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securi- ties, in cash or otherwise. The foregoing sentence shall not apply to (A) the Stock to be sold hereunder, (B) the issuance by the Company of any shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriter has been advised in writing, (C) the grant of options to purchase up to an aggregate of 120,000 shares of Common Stock pursuant to the Company's, the Operating Partnership's and the Service Companies' existing employee, trustee or director benefit plans or (D) the issuance of Units in connection with the acquisition of property, directly or indirect- ly, by the Operating Partnership, notice of which shall satisfy be provided to the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.Underwriter promptly following any such issuance;
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports and any definitive defini- tive proxy or information statements, if any, 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 ActAct for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock;
(j) To use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 1997, as a REIT under the Code;
(k) 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 take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "invest- ment company" within the meaning of such term under the 1940 Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Amli Residential Properties Trust)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as it deems necessary provided herein; to ascertain promptly whether prepare the Final Term Sheet, substantially in the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing Schedule III hereto and approved by the Commission and, in Representatives and file the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission Final Term Sheet pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that Rules and Regulations within the Underwriter otherwise would not have been required time period prescribed by such Rule; to file thereunder.
(e) If advise the Time Representatives, promptly after it receives notice thereof, of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend amendment or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter has been filed and to any dealer upon request, either amendments or supplements furnish the Representatives with copies thereof; to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination 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, Preliminary Prospectus or the Prospectus or 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 the Preliminary Prospectus, Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To pay the applicable Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) without regard to the proviso therein;
(c) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(d) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, (D) the Final Term Sheet, and (E) any document incorporated by reference in any Preliminary Prospectus or the Prospectus;
(e) During the period in which the Prospectus relating to the Notes (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, to comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs 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 a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus or file any document to comply with the Securities Act, the Company will promptly notify the Representatives and will, subject to Section 5(a) hereof, amend the Registration Statement, amend or supplement the Pricing Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request;
(f) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(g) For so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, 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;
(h) Not to make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives (which consent being deemed to have been given with respect to (A) the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof and (B) any other Issuer Free Writing Prospectus identified on Schedule II hereto).
(i) To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; 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;
(j) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Notes for offering and sale under the securities laws of such other 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 Notes; provided, that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation 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 such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(k) As soon as practicable after the Effective Date and in any event not later than 12 months after the date hereof, 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;
(l) To apply the net proceeds from the sale of the Notes being sold by the Company as set forth in the Prospectus;
(m) Not to take any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes;
(n) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act;
(o) 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;
(p) From the date hereof through the Delivery Date, the Company agrees not to, directly or indirectly, sell, offer to sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company with substantially similar terms to any of the 2010 Notes, 2013 Notes, 2018 Notes or 2037 Notes, except with the prior written consent of Xxxxxx Brothers Inc. and Banc of America Securities LLC; and
(q) To comply with all agreements set forth in the representation letters of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus Supplement in a form approved by the Underwriter and to file such Prospectus Supplement pursuant to Rule 430A 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; to make no further amendment or Rule 430B under any supplement to the Securities ActRegistration Statement or to the Prospectus except as permitted herein; to advise the Underwriter, as applicablepromptly after it receives notice thereof, and will notify of the Underwriter promptly, and confirm the notice in writing, (i) time when any post-effective amendment to the Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriter with copies thereof; to advise the Underwriter, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing 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 that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing To furnish promptly to the Underwriter and to counsel for the Underwriter a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During the period mentioned in Section 5(f) below, To deliver promptly to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or such number of the Company being required to file following documents as the Underwriter shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case including consents and exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus Supplement, the Securities Act Prospectus Supplement and any amended or supplemented Prospectus Supplement; and, if the delivery of a free writing prospectus prepared by is required at any time after the Effective Time in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Shares and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Preliminary Prospectus conflicts with Supplement or the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when such Preliminary Prospectus Supplement or the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Preliminary Prospectus Supplement or the Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, forthwith to preparenotify the Underwriter and, upon its request, to file with the Commission such document and furnish, at its own expense, to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the dealers (whose names and addresses you Underwriter may from time to time reasonably request of an amended or supplemented Preliminary Prospectus Supplement or the Prospectus which will furnish correct such statement or omission or effect such compliance. The aforementioned documents furnished to the CompanyUnderwriter 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 which Securities may have been sold by you on behalf the Registration Statement or the Prospectus Supplement or any supplement to the Prospectus Supplement that may, in the judgment of the Underwriter and or Counsel to the Underwriter, be required by the Securities Act or the Exchange Act or requested by the Commission;
(e) Prior to filing with the Commission any other dealers upon request, either amendments amendment to the Registration Statement or supplements supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light pursuant to Rule 424 of the circumstances when Securities Act Regulations, to furnish a copy thereof to the Prospectus (or in lieu thereof Underwriter and counsel for the notice referred Underwriter and obtain the consent of the Underwriter to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(gf) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the The Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To will make generally available to the Company’s its security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with but no later than 60 days after the first fiscal quarter close of the Company occurring after the date of this Agreement which shall satisfy period covered thereby an earnings statement (in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations), which need not be certified by independent certified public accountants unless required by the Securities Act or the Securities Act Regulations, covering a twelve-month period commencing after the "effective date" (as defined in said Rule 158) of the Registration Statement;
(g) The Company will furnish to the 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 the 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 Underwriter copies of all materials furnished by the Company to its 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 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;
(i) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Shares for offering and sale under the securities, real estate syndication or Blue Sky laws of such jurisdictions as the 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 Shares by the Underwriters;
(j) For a period of 30 days from the date of the Prospectus, the Company and the Operating Partnership will not, directly or indirectly, (1) offer for sale, sell, contract to sell, pledge, hedge 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 Common Shares, Units or securities convertible into or exercisable or exchangeable for Common Shares or Units (other than the Shares, shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof and except in connection with the acquisition of real property or interests therein, including mortgage or leasehold interests or in conjunction with any joint venture transaction to which the Company or an affiliate of the Company is or becomes a party), or sell or grant options, rights or warrants with respect to any Common Shares, Units or securities convertible into or exercisable or exchangeable for Common Shares or Units (except pursuant to customary compensation arrangements and employee benefit plans), 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, 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 the Underwriter; and to cause each Executive Officer and a certain director to furnish to the Underwriter, prior to the Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriter, 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), directly or indirectly, any Common Shares including, without limitation, Common Shares that may be deemed to be beneficially owned by such party in accordance with the Securities Act Regulations and Common Shares that may be issued upon exercise of any option or warrant or securities convertible into or exchangeable for Common Shares owned by such party on the date the letter is completed 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 Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise, in each case for a period of 30 days from the date of the Prospectus Supplement, without the prior written consent of the Underwriter;
(k) To use its best efforts to effect the listing of the Shares, and to maintain the listing of the Common Shares, on the NYSE;
(l) To take such steps as shall be necessary to ensure that neither the Company nor the Operating Partnership shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.;
(im) The Company will apply use its best efforts to continue to meet the net proceeds from the sale of the Securities requirements to qualify as described in the Prospectus a REIT under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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.Code; and
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters and the Designated Underwriter that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period (not less than two business days) to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Underwriters with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal as soon as practicable.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur occurs or condition exist exists as a result of which it the Prospectus as then amended or supplemented would, when the Prospectus is delivered, include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will 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) 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Companyiii) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that (not later than 10:00 A.M., New York City time, on the statements in business day following the Prospectus as so 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 business day following the date of such amendment or supplement).
(e) The Company will notmake generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(gf) To endeavor The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided PROVIDED that in no event shall the Company shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver, upon request, to the Representatives and to each of the offering other Underwriters, (i) as soon as they are available, copies of all reports or sale 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 or any national securities as contemplated exchange or automatic quotation system on which the Stock is listed or quoted, with the filing of any such document with the Commission by this Agreement XXXXX and the Prospectus, in any jurisdiction where it is not now subjectemail delivery of such document (or of a notice of such filing) to a designated email address of each Representative and Underwriter deemed sufficient to satisfy the Company's obligation to deliver such document under this Section 4(g).
(h) To make generally available 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 (the "Lock-Up Period") without the prior written consent of XX Xxxxx other than (A) the Company's sale of the Stock hereunder, (B) the issuance of shares of Common Stock or securities exercisable for Common Stock pursuant to (i) employee benefit plans, qualified stock option plans or other employee compensation plans, as such plans are in existence on the date hereof and described in the Prospectus, or (ii) currently outstanding options, warrants or rights, and (C) the issuance of not more than an aggregate of [1,113,702] shares of Common Stock (including warrants exercisable for such shares of Common Stock) to unaffiliated third parties in connection with one or more strategic partnerships, joint ventures, collaborations or similar arrangements for the purpose of promoting, marketing or distributing the Company's product candidates, or in connection with one or more acquisitions or licenses by the Company of any business, products or technologies, provided, however in the case of clause (C) that, prior to the issuance of any such shares or warrants, each recipient thereof shall have entered into and delivered to you a lock-up agreement substantially in the form of Exhibit I hereto. The Company will cause (x) each shareholder, optionholder and warrantholder of the Company that is an institutional investor to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit II hereto, (y) each officer and director of the Company and each shareholder, optionholder (other than optionholders listed on Schedule B hereto) and warrantholder of the Company that is not an institutional investor to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit I hereto, and (z) each optionholder listed on Schedule B hereto to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of Exhibit III hereto, pursuant to which letters such persons shall agree not to 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, without the prior written consent of XX Xxxxx. The Company also agrees that during such period, the Company will not file any registration statement, preliminary prospectus or prospectus, or any amendment or supplement thereto, under the Securities Act for any such transaction or which registers, or offers for sale, Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, except for a registration statement on Form S-8 relating to employee benefit plans. The Company hereby agrees that (i) if it issues an earnings release or material news, or if a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (ii) if prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this paragraph (h) 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.
(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 financial statements of the 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 other communication directly or indirectly or hold any press conference with respect to the Company’s security holders , its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and to you as soon as practicable an earning statement covering a period of at least twelve months beginning consistent with the first fiscal quarter past practices of the Company occurring and of which the Representatives are notified), without the prior written consent of the Representatives, unless in the judgment of the Company and its counsel, and after notification to the date of this Agreement which shall satisfy Representatives, such press release or communication is required by law.
(l) Without limiting the provisions of Section 11(a4(h) in connection with the offering of the Securities Act and Stock, until XX Xxxxx shall have notified the rules and regulations Company of the Commission thereundercompletion 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 Common Stock, or attempt to induce any person to purchase any Common 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 Common Stock.
(im) 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 Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds".”
(jp) In connection with the Directed Share Program, the Company will ensure that 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 months following the date of the effectiveness of the Registration Statement. The Designated Underwriter will notify the Company as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(q) The Company will cooperate comply with all applicable securities and other applicable securities and other laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTCDirected Share Program.
(kr) The Company will file promptly use its best efforts to effect and, for at least one year from the date hereof, maintain the quotation of the Stock on the Nasdaq.
(s) The Company will use its best efforts to do and perform all reports and any definitive proxy or information statements, if any, things required to be filed done or performed under this Agreement by the Company with prior to each Closing Date and to satisfy all conditions precedent to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) delivery of the Exchange ActFirm Stock and the Optional Stock.
(t) The Company will not declare, pay or otherwise make a dividend or distribution of any kind on any of its capital stock prior to the Closing Dates.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file such Rule 462(b) Registration Statement with the requirements 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 and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than 10:00 A.M., New York City time, on the day following the execution and delivery of this Agreement; to make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements 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 either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to provide the Representatives with copies thereof; to advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible moment.its withdrawal;
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, To furnish promptly to furnish to you Xxxxxx Brothers Inc. a signed copy of each such proposed of the Registration Statements as originally filed with the Commission, and each amendment or supplement thereto filed with the Commission, including all consents and not to file any such proposed amendment or supplement to which you reasonably object.exhibits filed therewith;
(c) During To deliver promptly to the period mentioned Representatives in Section 5(f) below, to furnish to you a copy New York City such number 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 you following documents as the Representatives shall reasonably object.
request: (d) Not to take any action that would result in i)conformed copies of the Underwriter or the Company being required to file Registration Statements as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) under and (ii) each Preliminary Prospectus, the Securities Act a free writing prospectus prepared by or on behalf Prospectus (not later than 10:00 A.M., New York City time, of the Underwriter that day following the Underwriter otherwise would execution and delivery of this Agreement) and any amended or supplemented Prospectus (not have been 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 to file thereunder.
(e) If at any time after the Effective Time of Sale Prospectus is being used to solicit offers to buy the Securities Primary Registration Statement in connection with the offering or sale of the Stock (or any other securities relating thereto) and if at a such time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist have occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include any untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to prepare and furnish without charge to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the each U.S. Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements 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 Statements or the Prospectus or any supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented will notmay, in the light judgment of the circumstances when Company or the Representatives, 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 Statements or supplement to the Prospectus or (or in lieu ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the notice referred Representatives and counsel for the U.S. Underwriters and obtain the consent of the Representatives to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.filing;
(gf) To endeavor to qualify As soon as practicable after the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out Effective Date of the offering or sale of the securities as contemplated by this Agreement and the ProspectusPrimary Registration Statement, in any jurisdiction where it is not now subject.
(h) To to make generally available to the Company’s 's security holders and to you as soon as practicable deliver to the Representatives an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations Regulations (including, at the option of the Commission thereunder.Company, Rule 158);
(g) For a period of five years following the Effective Date of the Primary Registration Statement, to furnish to the Representatives (i) The copies of all materials furnished by the Company will apply the net proceeds from the sale to its shareholders generally, (ii) copies of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance all public reports and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy financial statements furnished by the Company to the principal national securities exchange or information statementsautomated quotation system upon which the Common Stock may be listed or quoted pursuant to requirements of or agreements with such exchange or system, if any, required to be (iii) copies of all reports filed by the Company with the Commission pursuant to Section 13(athe Exchange Act or any rule or regulation of the Commission thereunder 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 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 90 days from the date of the Prospectus, 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 or purchase by any person at any time in the future of) any shares of Common Stock (other than the Stock 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), 13(cor 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), 14 or 15(d) without the prior written consent Xxxxxx Brothers Inc. on behalf of the Exchange Act.Representatives; and to cause each executive 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, 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 or purchase by any person at any time in the future of) any shares of Common Stock for a period of 180 days from the date of the Prospectus, without the prior written consent of Xxxxxx Brothers Inc. on behalf of the Representatives;
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) a. The Company will comply prepare the Rule 462(b) Registration Statement, if necessary, in a form reasonably satisfactory to the Representatives and file such Rule 462(b) Registration Statement with the requirements of Commission on the date hereof; prepare the Prospectus in a form reasonably satisfactory to the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by written notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any such order is issued, to obtain preventing or suspending the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time use of Sale any Preliminary Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file suspending any such proposed amendment or supplement qualification, use promptly its best efforts to which you reasonably objectobtain its withdrawal.
(c) During b. If at any time prior to the period mentioned in Section 5(f) below, expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to furnish to you a copy of each proposed free writing prospectus the Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend the Prospectus, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplement 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 as may be necessary to comply permit compliance with applicable lawthe requirements of Section 10(a)(3) of the Securities Act.
c. The Company will 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, forthwith and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
d. The Company will deliver promptly to prepare, file 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented Prospectus (not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement).
e. The Company will notmake generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the light effective date of the circumstances when the Prospectus Registration Statement (or in lieu thereof the notice referred to as defined in Rule 173(a158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) is delivered to a purchasercomplying with Section 11(a) of the Securities Act and the Rules and Regulations (including, be misleading or so that at the Prospectusoption of the Company, as amended or supplemented, will comply with applicable lawRule 158).
(g) To endeavor f. The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or to file a general consent to service of process in any jurisdiction;
g. During the period of three years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to shareholders 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 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 without the prior written consent of SG Cxxxx xxxer than the Company's sale of the Stock hereunder and the issuance of shares 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; the Company will cause each officer, director and shareholder listed in Schedule B to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 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, without the prior written consent of SG Cxxxx.
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 Statement and the Prospectus.
k. Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representatives are notified), without the prior consent of the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
l. In connection with the offering of the Stock, until SG Cxxxx xxxll 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 that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available prior to the Company’s security holders and Option Closing Date which would require the Prospectus to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of be amended or supplemented pursuant to Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.4(b);
(i) n. The Company will apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “"Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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."
Appears in 1 contract
Samples: Underwriting Agreement (Silicon Entertainment Inc /Ca/)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) of Rule 430A under the Securities Act Rules and Regulations not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filedfiled and to furnish the Representatives with copies thereof; advise the Representatives, (ii) of the receipt of any comments from the Commissionpromptly after it receives notice thereof, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectusPreliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statements or the Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such order is issuedqualification, use promptly its reasonable best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement, Statement when a prospectus relating to the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus Stock is required 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 you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and delivered any event shall occur or condition exist occurs as a result of which it is the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of circumstances under which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthey were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance. The Company will furnish without charge to prepareeach 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, file the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly an amended or supplemented Prospectus as 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 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 and furnisheach amendment thereto (in each case excluding exhibits), at its own expense(ii) each Preliminary Prospectus, to (iii) the Underwriter and to the dealers Prospectus (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf not later than 10:00 A.M., New York time, of the Underwriter business day following the execution and to delivery of this Agreement) and any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (not later than 10:00 A.M., New York time, on the business day following the date of such amendment or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawsupplement).
(ge) To endeavor make generally available to its stockholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statements (as defined in Rule 158(c) of the Rules and Regulations), 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).
(f) The Company will promptly take from time to time such actions as the Representatives may reasonably request to qualify the Securities Stock for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Representatives may designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that in no event shall the Company and its subsidiaries shall not be obligated to qualify to do business as foreign corporations in any jurisdiction where it is in which they are not now so qualified or take any action that would subject it to file a general consent to service of process suitsin any jurisdiction.
(g) During the period of five years from the date hereof, other than those arising out the Company will deliver or make available on its corporate website to the Representatives and, upon request, to each of the offering other Underwriters, as soon as they are available, (i) copies of all reports or sale other communications furnished to stockholders and (ii) copies of any reports and financial statements furnished or filed with the Commission pursuant to the Exchange Act or any national securities as contemplated by this Agreement and exchange or automatic quotation system on which the Prospectus, in any jurisdiction where it Stock is not now subjectlisted or quoted.
(h) To make generally available 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 270 days from the date of the Prospectus without the prior written consent of SX Xxxxx other than (i) the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter sale of the Company occurring after Stock hereunder, (ii) the issuance of shares, options or other rights 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 issued to or for the benefit of this Agreement employees, consultants and strategic investors and (iii) the issuance of shares, options or other rights to strategic investors or in connection with any acquisition the Company may make, all of which shall satisfy the provisions of Section 11(a) of issuances will be made in compliance with the Securities Act and the rules Rules and regulations Regulations; provided, however, that if (A) the Company issues an earnings release or material news or a material event relating to the Company occurs during the last 17 days of such 270-day period or (B) prior to the expiration of such 270-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 270-day period, the restrictions imposed by this Section 4(h) shall continue to apply until the expiration of the Commission thereunder18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Company will furnish to each of its officers, directors and stockholders listed in Schedule B and use its reasonable best efforts to have such persons furnish to the Representatives, prior to the First Closing Date, and the Company will use its reasonable best efforts to cause each recipient of any shares, options or other rights permitted to be issued under clause (iii) above to deliver to the Company, prior to the issuance of such shares, options or other rights, a letter, substantially in the form of 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 otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of 270 days from the date of the Prospectus and as otherwise provided in such form, without the prior written consent of SX Xxxxx.
(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 other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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 apply the net proceeds from the sale of the Securities Stock as described set forth in the Prospectus under the heading “Use of Proceeds.”
(jn) The Company will cooperate with the Underwriter conduct its affairs in arranging for the Securities such a manner so as to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, required to be filed by ensure that the Company with was not and will not be an “investment company” within the meaning of the Investment Company Act and the rules and regulations of the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Actthereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Cambridge Display Technology, Inc.)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The To furnish promptly to the Underwriter and to counsel for the Underwriter one signed copy of the Registration Statement as originally filed with the Commission, and each amendment or supplement thereto filed prior to the date of the Underwriting Agreement or relating to or covering the Underwritten Certificates, and a copy of each Prospectus filed with the Commission, including all consents and exhibits filed therewith;
(b) To deliver promptly to the Underwriter such number of conformed copies of the Registration Statement and of each amendment or supplement thereto filed prior to the date of the Underwriting Agreement or relating to or covering the Underwritten Certificates and, during such period following the date of the Underwriting Agreement in which any Prospectus is required by law to be delivered, such number of copies of each Prospectus, as the Underwriter may reasonably request;
(c) To file promptly with the Commission, during such period following the date of the Underwriting Agreement in which any Prospectus is required by law to be delivered, any amendment or supplement to the Registration Statement or any Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Act or requested by the Commission and approved by the Underwriter;
(d) Prior to filing with the Commission during the period referred to in (c) above any amendment or supplement to the Registration Statement or any Prospectus, to furnish a copy thereof to the Underwriter and to counsel for the Underwriter, and the Company will comply with the requirements of Rule 430A under the Securities Act not file any such amendment or Rule 430B under the Securities Act, as applicable, and will notify supplement to which the Underwriter promptly, and confirm shall reasonably object;
(e) To advise the notice in writing, Underwriter promptly (i) when any post-effective amendment to the Registration Statement shall become relating to or covering the Underwritten Certificates becomes effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request or proposed request by the Commission for any an amendment or supplement to the Registration Statement or to any Prospectus (insofar as the amendment or supplement relates to or covers the Prospectus Underwritten Certificates) or for any additional information, and (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order directed to any Prospectus or the initiation or threat of any such stop order proceeding, (iv) of receipt by any governmental or regulatory authority preventing or suspending the use Company of any preliminary prospectus, or of notification with respect to the suspension of the qualification of the Securities Underwritten Certificates for offering or sale in any jurisdiction, jurisdiction or of the initiation or threatening threat of any proceedings proceeding for that purpose and (v) of the happening of any event that makes untrue any statement of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, a material fact made in the event Registration Statement or any Prospectus or that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent requires the issuance making of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing a change in the Registration Statement, the Time of Sale Prospectus Statement or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, any material statement therein 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 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 Underwriter 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 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.;
(f) If, during such the period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a(c) under above, the Securities Act) is required by law to Commission shall issue a stop order suspending the effectiveness of the Registration Statement, the Company shall be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order obligated to make every reasonable effort to obtain the statements thereinlifting of that order at the earliest possible time;
(g) As soon as practicable, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered make generally available to a purchaser, not misleading, or if it is necessary its security holders and to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, deliver to the Underwriter and to an earnings statement conforming with the dealers (whose names and addresses you will furnish to the Companyrequirements of Section 11(a) to which Securities may have been sold by you on behalf of the Underwriter Act and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.158 thereunder;
(gh) To endeavor to qualify the Securities Underwritten Certificates for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall the Underwriter may reasonably request; provided provided, however, that in no event this Section 6(h) shall not obligate the Company be obligated to file any general consent to service of process or to qualify to do business in any jurisdiction where or as a dealer in securities in any jurisdiction in which it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.qualified; and
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will To file promptly all reports any documents and any definitive proxy or information statements, if any, amendments thereof as may be required to be filed by the Company with the Commission it pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Lehman Structured Securities Corp)
Further Agreements of the Company. The Company covenants and agrees with Underwriterthe several Underwriters that:
(a) The Company will comply 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 requirements of Commission on the date hereof; prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act not later than the second business day following the execution and delivery of this Agreement; make no further amendment or Rule 430B under the Securities Act, as applicable, and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment supplement to the Registration Statements or to the Prospectus prior to the Option Closing Date to which the Representatives shall reasonably object by notice to the Company after a reasonable period to review; advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to either Registration Statement shall become effective, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus shall have has been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, filed and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Underwriters 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter 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 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestcopies thereof; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 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, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the effective date of the Initial Registration Statement when a prospectus relating to the Stock is required to be delivered any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representatives thereof and upon their request will prepare an amended or supplemented Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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 as 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 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 and each amendment thereto (in each case excluding exhibits), (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 City time, on the business day following the date of such amendment or supplement) and (iv) any document incorporated by reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as practicable, but in any event not later than eighteen months after the effective date of the 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).
(f) The Company will promptly take from time to time such 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 designate and to continue such qualifications in effect for so long as required for the distribution of the Stock; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign 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 electronically or via mail to the Representatives and, upon request, to each of the other Underwriters, (i) as soon as they are available, copies of all reports or other communications furnished to shareholders 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 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 90 days from the date of the Prospectus without the prior written consent of XX Xxxxx other than the Company's sale of the Stock hereunder and the issuance of shares 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. The Company will cause each officer, director and shareholder listed in Schedule C to furnish to the Representatives, prior to the First Closing Date, a letter, substantially in the form of 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 otherwise dispose 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, except as specified therein.
(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 Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in 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 the Representatives, unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(l) 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(b).
(n) The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus under the heading "Use of Proceeds".
Appears in 1 contract
Samples: Underwriting Agreement (Innovex Inc)
Further Agreements of the Company. The Company covenants and agrees with Underwriteragrees:
(a) The Company will comply with To prepare the requirements of Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 430A 424(b) under the Securities Act or Rule 430B under not later than the Securities Act, as applicable, Commission’s close of business on the second business day following the execution and will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective delivery of this Agreement; to make no further amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus or for additional informationhas been filed and to furnish the Representatives with copies thereof; to advise the Representatives, and (iv) promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of the Prospectus or any preliminary prospectusIssuer Free Writing Prospectus, or of the suspension of the qualification of the Securities Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding or examination for any such purpose or of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent of the issuance of any such stop order and, if or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such order is issuedqualification, to use promptly its best efforts to obtain the lifting thereof at the earliest possible momentits withdrawal.
(b) Before amending or supplementing To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration StatementStatement as originally filed with the Commission, and each amendment thereto filed with the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 5(f) belowCommission, to furnish to you a copy of each such proposed amendment or supplement including all consents and not to file any such proposed amendment or supplement to which you reasonably objectexhibits filed therewith.
(c) During To deliver promptly to the period mentioned in Section 5(fRepresentatives such number of the following documents as the Representatives shall reasonably request: (A) below, to furnish to you a copy conformed copies 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 you reasonably object.
(d) Not to take any action that would result in the Underwriter or the Company being required to file Registration Statement as originally filed with the Commission pursuant to Rule 433(dand each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) under each Preliminary Prospectus, the Securities Act Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a free writing prospectus prepared by is required at any time after the date hereof in connection with the offering or on behalf sale of the Underwriter that the Underwriter otherwise would not Stock or any other securities relating thereto and if at such time any events shall have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, not misleading, or if any event shall occur or condition exist occurred as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if 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 Underwriter 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 then amended or supplemented will not, in light would include an untrue statement of the circumstances when delivered a material fact or omit 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, state any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserdelivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement the Prospectus in order to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expenseSecurities Act, to notify the Underwriter Representatives and, upon their request, to file such document and to the dealers (whose names prepare and addresses you will furnish without charge to the Company) to which Securities may have been sold by you on behalf of the each Underwriter and to any other dealers upon request, either amendments dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplements supplemented Prospectus that 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 or the Prospectus so that may, in the statements 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 or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, and not to file any such amendment or supplement to which the Representatives reasonably object.
(f) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(g) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as so a result of which any Issuer Free Writing Prospectus, as then amended or supplemented will notsupplemented, 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 when the Prospectus (under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the 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 supplementedsupplemented Issuer Free Writing Prospectus that will correct such conflict, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities statement or Blue Sky laws of omission or effect such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subjectcompliance.
(h) To As soon as practicable after the Effective Date (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 after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to you as soon as practicable deliver to the Representatives (or make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earning earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement and its subsidiaries (which shall satisfy the provisions of need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Commission thereunderCompany, Rule 158 under the Securities Act).
(i) The Company will apply Promptly from time to time to take such action as the net proceeds from Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other 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 Securities Stock; provided that in connection therewith the Company shall not be required to (i) qualify as described a foreign corporation in the Prospectus under the heading “Use any jurisdiction in which it would not otherwise be required to so qualify; (ii) file a general consent to service of Proceedsprocess in any such jurisdiction; or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.”
(j) The Company will cooperate For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device 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 exercisable or exchangeable for Common Stock (other than the Stock and shares of Common Stock and securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in the most recent Preliminary 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 Underwriter grant of options pursuant to employee benefit plans, option plans, qualified stock option plans or other employee compensation plans existing on the date hereof or described in arranging for the Securities most recent Preliminary Prospectus), (B) 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 (A) or clause (B) is to be eligible for clearance settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of 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 (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Credit Suisse Securities (USA) LLC and settlement through DTCX.X. Xxxxxx Securities LLC, on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule II hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(l) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement.
(m) Except as disclosed in the most recent Preliminary Prospectus, the Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(n) The Company will file promptly do and perform all reports and any definitive proxy things required or information statements, if any, required necessary to be filed done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Company with Underwriters’ obligations hereunder to purchase the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange ActStock.
Appears in 1 contract
Further Agreements of the Company. The Company covenants and agrees with Underwriter:
(a) The Company will comply with the requirements of Rule 430A under the Securities Act or Rule 430B under the Securities Act, as applicable, covenants and will notify the Underwriter promptly, and confirm the notice in writing, agrees:
(i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to To prepare the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request in a form approved by the Commission for any amendment Representatives and to the Registration Statement or any amendment or supplement to the file such Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order by any governmental or regulatory authority preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary 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 will take such steps as it deems necessary delivery of this Agreement; to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort no further amendment or any supplement to prevent the issuance of any such order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus Statement or the Prospectus during prior to the period mentioned in Section 5(f) belowlast Delivery Date except as permitted herein; to advise the Representatives, to furnish to you a copy promptly after it receives notice thereof, of each such proposed amendment or supplement and not to file the time when any such proposed amendment or supplement to which you reasonably object.
(c) During the period mentioned in Section 5(f) below, to furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in the 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.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchaser and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in light of the circumstances, 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 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 Underwriter has been filed and to any dealer upon request, either amendments or supplements furnish the Representatives with copies thereof; to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in 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.
(f) If, during such period after the first date of the public offering of the Securities as the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action that would subject it to general service of process suits, other than those arising out of the offering or sale of the securities as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will apply the net proceeds from the sale of the Securities as described in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will cooperate with the Underwriter in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will file promptly all reports and any definitive proxy or information statements, if any, 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 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 or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or 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 the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Representatives, without charge, such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock 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;
(iv) To file promptly with the Commission any amendment to the Registration 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;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, 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);
(vi) Not to make any offer relating to the Stock 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 its 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 and, in any event, no 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);
(ix) For a period of three years following the Effective Date, to furnish to the Representatives copies of all 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 or any rule or regulation of the Commission thereunder;
(x) 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 in which it is not so qualified or subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject;
(xi) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (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 the Stock and securities convertible into or exchangeable for Common Stock issued pursuant to the 2004 Plan), 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 Common Stock or securities convertible into or exchangeable for Common Stock pursuant to the 2004 Plan), (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, including any amendments, with respect to the registration of any 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 Brothers Inc. on behalf of the Underwriters; and to cause each stockholder, optionholder, officer and director of the Company to furnish to the Xxxxxx Brothers Inc., prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto;
(xii) To apply the net proceeds from the sale of the Stock as set forth in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" as defined in the Investment Company Act;
(xiv) To comply, in all material respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated thereunder.
(b) Each Underwriter severally agrees that such Underwriter shall not include any "issuer information" (as defined in Rule 433) in any "free writing prospectus" (as defined in Rule 405) 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, ("PERMITTED ISSUER INFORMATION"); provided that 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.
Appears in 1 contract
