Additional Covenants. The Company covenants and agrees with the Placement Agents that: (a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations. (b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed. (d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus. (e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance. (f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction. (g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement. (h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. (i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof. (j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K. (k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus. (l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference. (m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication. (n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market. (o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals. (p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2). (q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 2 contracts
Sources: Placement Agency Agreement, Placement Agency Agreement
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Notes for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Notes; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Notes filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Notes by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Notes during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesNotes, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the period beginning from the date of this Agreement and continuing to hereof through and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for saleoffer, sell or enter into any agreement to sell, contract to sell or otherwise dispose of, of any equity debt securities of the Company, except for the Securities; provided, however, that issued or guaranteed by the Company may issue, or grant options to purchase, shares and having a tenor of Common Stock pursuant to any employee stock incentive plan existing on the date hereofmore than one year.
(j) The Company will apply the proceeds from the sale of the Securities Notes as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under Notes of the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date, the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesNotes, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationRepresentatives.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market[Reserved.]
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If [Reserved.]
(q) [Reserved.]
(r) The Company will use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2019, the Company elects retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures designed to rely on Rule 462(bdetermine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2020 fiscal year, the Company will engage an independent registered public accounting firm to conduct an audit, including a review of the Company’s test procedures designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) under Continuing through the 1933 Closing Date the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date, the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Notes other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(w) If so requested by the Representatives, the Company shall both file cause to be prepared and delivered, at its expense, by the Applicable Time, to the Representatives an Abbreviated Registration Statement “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of the Notes. As used herein, the term “electronic Prospectus” means a form of the most recent Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Notes, (ii) it shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, as the case may be; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally). The Company hereby confirms that, if so requested by the Representatives, it has included or will include in the Prospectus filed with the SEC an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus to such investor or representative.
(x) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 405 of the 1933 Act Rules and Regulations; any such free writing prospectus the use of which has been consented to by the earlier of (i) 9:00 p.m., St. Louis time, Representatives is listed on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Schedule II hereto.
(qy) The Company has complied and will execute comply with the requirements of Rule 433 of the 1933 Act Rules and deliver Regulations applicable to any stock purchase agreement reasonably requested by Issuer Free Writing Prospectus, including timely filing with the SEC or retention where required and legending; the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 of the 1933 Act Rules and Regulations to avoid a requirement to file with the SEC any Investorelectronic road show.
(z) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, t
Appears in 2 contracts
Sources: Underwriting Agreement (Healthcare Realty Trust Inc), Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents you that:
(a) The Company will timely transmit copies (i) prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the name of the ProspectusUnderwriter and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares, and any amendments or supplements thereto, to file the SEC for filing Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no later than the Commission's close of business on the second business day following the date of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies determination of the Registration Statement as originally filed and offering price of each amendment thereto the Shares; (including exhibits filed therewith or incorporated ii) during any period in which the Prospectus is required by reference therein and documents incorporated or deemed law to be incorporated delivered in connection with an offering or sale of Shares by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each an underwriter or dealer, not file any amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents you shall not previously have been advised and furnished with a copy or to which the Placement Agents you shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and (iii) during any period in which the Company will Prospectus is required by law to be delivered in connection with an offering or sale of Shares by an underwriter or dealer, promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During any period in which the period when a prospectus relating to any of the Securities Prospectus is required by law to be delivered under the 1933 Act in connection with an offering or sale of Shares by any Placement Agents an underwriter or dealer, the Company will complyadvise you promptly, at its own expenseafter it shall receive notice or obtain knowledge thereof, with all requirements imposed of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act institution or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SECthreatening of any proceedings for that purpose, and furnish to during any period in which the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Prospectus is required by law to be delivered under the 1933 Act in connection with an offering or sale of Shares by any Placement Agents an underwriter or dealer, the Company will furnish use its best efforts to prevent the issuance of any such proper information stop order preventing or suspending the use of the Prospectus and to obtain as may be lawfully required soon as possible the lifting thereof, if issued.
(c) Prior to any public offering of the Shares, the Company will cooperate with you and otherwise cooperate your counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as required for distribution of the laws of any jurisdictionShares.
(gd) In accordance During the period in which the Prospectus is required by law to be delivered in connection with Section 11(a) the offering or sale of Shares by an underwriter or dealer, the Company will deliver to you, without charge as many copies of the 1933 Act and Rule 158 Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as you may from time to time reasonably request. The Company consents to the use of such Prospectus by you, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares by an underwriter or dealer. The Company will deliver to you at or before the Closing Date one conformed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith or incorporated by reference therein and all documents incorporated by reference in the Prospectus and will deliver to you such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered in connection with an offering or sale of Shares by an underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of your counsel, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders of the SecuritiesExchange Act, as soon as practicableit is reasonably practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than 15 months after the first day date of the month next succeeding Prospectus Supplement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the month in date of the Prospectus Supplement, which occurred earnings statement shall satisfy the effective date (within the meaning requirements of Rule 158Section 11(a) of the Registration StatementAct and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to you at your principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed by the Company with the SEC Commission pursuant to Sections 13(a), 13(c), 14 the Act or 15(d) of the 1934 Exchange Act. The Company will furnish deliver to its security holders annual you similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company financial statements; provided however, that during any period in which generally accepted accounting principles or related auditing standards do not require that a Specified Affiliate (as defined below) of the Company be accounted for as a subsidiary for purposes of the consolidated financial statements audited of the Company and its subsidiaries, the term "significant subsidiary" shall not include any Specified Affiliate of the Company for purposes of this paragraph (g). For purposes hereof, "Specified Affiliate" means any corporation, association or other business entity formed for the purpose of earning income not qualified as "rents from real property" under applicable provisions of the Code, in which the Company owns substantially all of the economic interest but less than 10% of the voting interests, and the remaining economic and voting interests are subject to restrictions requiring that ownership of such interests be held by independent public accountants and quarterly reports containing financial statements and financial officers, directors or employees of the Company. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available or filed.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nj) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and for a period of at least five years after the Investor Warrant Shares on The Nasdaq SmallCap Marketdate of the Prospectus Supplement on, the New York Stock Exchange.
(ok) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls During any period in which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary a prospectus is required by law to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Actbe delivered by an Underwriter or dealer, the Company shall both will promptly file an Abbreviated Registration Statement all documents required to be filed with the SEC in compliance with Rule 462(bCommission pursuant to Sections 13, 14 or 15(d) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Exchange Act.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 2 contracts
Sources: Underwriting Agreement (Healthcare Realty Trust Inc), Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies Notwithstanding any other provision of this Rights Agreement, no adjustment to the number of Preferred Shares (or fractions of a share) or other securities for which a Right is exercisable or the number of Rights outstanding or associated with each Common Share or any similar or other adjustment shall be made or be effective if such adjustment would have the effect of reducing or limiting the benefits the holders of the ProspectusRights would have had absent such adjustment, including, without limitation, the benefits under Sections 11 and any amendments or supplements thereto12, unless the terms of this Rights Agreement are amended so as to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulationspreserve such benefits.
(b) The Company has furnished covenants and agrees that, after the Distribution Date, except as permitted by Section 26, it will not take (or permit any Subsidiary of the Company to take) any action if at the time such action is taken it is intended or reasonably foreseeable that such action will deliver reduce or otherwise limit the benefits the holders of the Rights would have had absent such action, including, without limitation, the benefits under Sections 11 and 12. Any action taken by the Company during any period after any Person becomes an Acquiring Person but prior to the Placement Agents Distribution Date shall be null and counsel for void unless such action could be taken under this Section 14(b) from and after the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and RegulationsDistribution Date. The Company will promptly notify shall not consummate any Business Combination if any issuer of Common Shares for which Rights may be exercised after such Business Combination in accordance with Section 11(c) shall have taken any action that reduces or otherwise limits the Placement Agents benefits the holders of the issuance by Rights would have had absent such action, including, without limitation, the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible momentbenefits under Sections 11 and 12.
(c) The Company will not file any amendment or supplement acknowledges that the Company may, after the date of this Rights Agreement, but subject to the Registration Statementapproval of the holders of its Common Shares, merge into a newly-formed corporation organized under the Prospectus laws of the State of Delaware for the purpose of changing the jurisdiction of incorporation of the Company (any such merger or any other prospectus relating similar transaction effected for the purpose of changing the jurisdiction of incorporation of the Company being hereinafter referred to as a "Reincorporation Transaction"). The Company shall not consummate any Reincorporation Transaction unless the Successor Company to the Securities filed pursuant to Rule 424(b) Company in such Reincorporation Transaction shall have executed a supplemental or new agreement providing for the assumption by such Successor Company of all of the 1933 Act Rules obligations and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination duties of the offering Company under this Rights Agreement. After consummation of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement any Reincorporation Transaction (and notwithstanding whether or the Prospectus, of which the Placement Agents not any such supplemental or new agreement shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerexecuted), (i) any event relating to or affecting the Successor Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any in such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval Reincorporation Transaction shall be liable for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.assume,
Appears in 2 contracts
Sources: Rights Agreement (Aspen Technology Inc /Ma/), Rights Agreement (Aspen Technology Inc /Ma/)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), of any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein and in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and conformed copies it will notify you, promptly after it shall receive notice thereof, of all consents and certificates the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of experts. The copies any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order andtherefor, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, have received notice or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.have
Appears in 2 contracts
Sources: Underwriting Agreement (Laser Vision Centers Inc), Underwriting Agreement (Laser Vision Centers Inc)
Additional Covenants. 5.1 The Company Corporation covenants and agrees with the Placement Agents thatUnderwriters that it shall:
(a) The Company will timely transmit copies file with the Exchanges all required documents and pay all required filing fees, and do all things required by the rules and policies of the ProspectusExchanges, and any amendments or supplements thereto, in order to obtain prior to the SEC for filing pursuant to Rule 424(b) Closing Date the requisite acceptance or approval of the 1933 Act Rules and Regulations.Exchanges for the Offering;
(b) The Company has furnished or will deliver prior to the Placement Agents and counsel for Time of Closing on the Placement AgentsClosing Date, fulfil to the satisfaction of the Underwriters all legal requirements (including, without chargelimitation, conformed copies compliance with Applicable Securities Laws and applicable U.S. securities laws) to be fulfilled by the Corporation to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the Final Prospectus and the U.S. Prospectus and to enable the Units and the Additional Common Shares and/or Additional Warrants to be distributed free of trade restrictions in the Qualifying Jurisdictions;
(c) until the Time of Closing on the Over-Allotment Closing Date, notify the Underwriters promptly, and confirm the notice in writing:
(i) when any Issuer Free Writing Prospectus shall have first been used, when any post-effective amendment to the Registration Statement as originally or the Warrant Registration Statement shall have been filed with the SEC or shall have become effective, and when any supplement to the U.S. Prospectus or any Canadian Prospectus or any amended U.S. Prospectus or any Canadian Prospectus or Supplementary Material shall have been filed;
(ii) of each amendment thereto the receipt of any comments from the Commissions or the SEC;
(including exhibits filed therewith iii) of any request by any of the Commissions to amend any Canadian Prospectus or incorporated for additional information or of any request by reference therein and documents incorporated or deemed the SEC to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of amend the Registration Statement and each amendment thereto furnished or to amend or supplement the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T U.S. Prospectus or by Rule 424(bfor additional information;
(iv) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the Warrant Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement prospectus, or of the initiation suspension of the qualification of the Offered Securities for offering and sale in any jurisdiction, or of the institution or, to the knowledge of the Corporation, threatening of any proceedings for any of such purposes. The Company ; and
(v) of the issuance by any of the Commissions or any stock exchange of any order having the effect of ceasing or suspending the distribution of the Offered Securities or the trading in the Common Shares or other securities of the Corporation, or of the institution or, to the knowledge of the Corporation, threatening of any proceedings for any such purpose; and the Corporation will use its best efforts every commercially reasonable effort to prevent the issuance of any stop order, any order preventing or suspending the use of any prospectus or any order ceasing or suspending the distribution of the Offered Securities or the trading in the Common Shares or other securities of the Corporation and, if any stop such order is issued, to obtain the lifting revocation thereof at the earliest possible moment.time;
(cd) The Company furnish to the Underwriters, without charge:
(i) a signed copy of each Canadian Prospectus (in English and French languages), the Registration Statement and the Warrant Registration Statement (including all exhibits thereto, documents filed therewith (including photocopies of the Form F-X and Warrant Form F-X) and amendments thereof) and an additional conformed copy of the Registration Statement and the Warrant Registration Statement (without exhibits thereto); and
(ii) at any time ending at the end of the period described in Subsection 5.1(h) below, at the place or places which the Underwriters may reasonably request, the Underwriters’ reasonable requirements of the commercial copies of each Canadian Prospectus (in English and French languages as required), the U.S. Prospectus and any Free Writing Prospectus or Issuer Free Writing Prospectus and such deliveries shall be made as soon as possible after the filing of such documents and, in any event, within one Business Day of such filing and the delivery will constitute the Corporation’s consent to the Underwriters use of such documents in connection with the Offering;
(e) by the act of having delivered each of the Canadian Prospectus and any amendments thereto to the Underwriters, have represented and warranted to the Underwriters that all material information and statements (except information and statements relating solely to the Underwriters) contained in such documents, at the respective dates of initial delivery thereof, comply with the Applicable Securities Laws of the Qualifying Jurisdictions and are true and correct in all material respects, and that such documents, at such dates, contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Corporation as required by the Applicable Securities Laws of the Qualifying Jurisdictions;
(f) not and, unless it obtains the prior written consent of the Underwriters, the Corporation will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Corporation with the SEC or retained by the Corporation under Rule 433 of the U.S. Securities Act; any free writing prospectus consented to by the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus”; and the Corporation agrees that (i) it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) it will comply with the requirements of Rules 164 and 433 under the U.S. Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping;
(g) during the period prior to the completion of the distribution of the Offered Securities, promptly notify the Underwriters in writing of any material change (actual or proposed) in the business, affairs, operations, assets or liabilities (contingent or otherwise) or capital of the Corporation, taken as a whole, or of any change which is of such a nature as to result in a misrepresentation in either of the Prospectus or any amendment thereto; notwithstanding Subsection 5.1(h) below, the Corporation shall not file any amendment or supplement to the Registration Statement, Prospectus or the U.S. Prospectus (or any other prospectus relating material supplementary to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the ProspectusU.S. Prospectus (all such amendments and material being Supplementary Material), of which the Placement Agents Underwriters shall not have previously have been advised and furnished with a copy along with any supplementary material or to which the Placement Agents Underwriters shall have reasonably objected objected, acting reasonably, promptly after reasonable notice thereof; provided, however, that this provision shall not prohibit the Corporation from complying with its timely disclosure and other obligations under applicable securities legislation and the requirements of any relevant stock exchange arising out of any material change or change in material information, and, in addition to the foregoing, the Corporation shall, in good faith, discuss with the Underwriters any change in circumstances (actual or proposed) which is not of such a nature that there is or ought to be consideration given by the Corporation as to whether notice in compliance with writing of such change need be given to the 1933 Act Rules and Regulations; and Underwriters pursuant to this Subsection;
(h) if, at any time prior to the Company will promptly notify you after it shall have received notice thereof completion of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any distribution of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerOffered Securities, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur or condition exist as a result of whichwhich it is necessary to amend the Disclosure Package, Registration Statement or supplement or amend the U.S. Prospectus or any Canadian Prospectus in order that the Disclosure Package, Registration Statement, Warrant Registration Statement, U.S. Prospectus or any Canadian Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser (or in lieu thereof, the notice referred to in Rule 173 of the U.S. Securities Act) or if, in the opinion of the Company Corporation, it is necessary to amend the Disclosure Package, Registration Statement, Warrant Registration Statement or amend or supplement any Canadian Prospectus or the Placement AgentsU.S. Prospectus to comply with the Applicable Securities Laws, the U.S. Securities Act or the applicable rules and regulations thereunder, and subject to Subsection 5.1(g) above, forthwith prepare, file with the SEC or any Commission within any applicable time limitation and furnish to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Corporation) to which Offered Securities may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the U.S. Prospectus or any Canadian Prospectus (in the English and French languages) (to be effected, if necessary, by the filing with the SEC of a post-effective amendment to the Registration Statement) so that the statements in the U.S. Prospectus or any Canadian Prospectus as then so amended or supplemented would will not include any untrue statement statements 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 madewhen the U.S. Prospectus or any Canadian Prospectus is delivered to a purchaser, not misleading or (ii) it so that the Disclosure Package, Registration Statement, the U.S. Prospectus or each Canadian Prospectus, as amended or supplemented, will comply with applicable law and comply with any other requirements under the Applicable Securities Laws and U.S. securities laws and the rules of the Exchanges and the expense of complying with this Subsection shall be necessary to amend or supplement borne by the Registration Statement or the Prospectus to comply Corporation; and concurrently with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number delivery of copies of, such an amendment or supplement to the Preliminary Prospectus and the Final Prospectus to the Underwriters, the Corporation shall deliver to the Underwriters duly executed copies of any Supplementary Material required to be filed by the Corporation in accordance with this Subsection and a French Language Prospectus Opinion, and, if any financial or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to accounting information is contained in any of the Securities is Supplementary Material, an additional Comfort Letter to that required by Subsection 5.1(o) below and a French Language Auditors’ Opinion;
(i) use its commercially reasonable efforts to be delivered under qualify the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Offered Securities for offer and sale under the securities or “blue sky sky” laws of such United States jurisdictions as the Placement Agents may Underwriters shall reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.request;
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During during the period when a prospectus relating to any of the Securities U.S. Prospectus is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will U.S. Securities Act; and
(i) file promptly all documents required to be filed by the Corporation with the SEC pursuant to Sections 13(a), 13(c), 14 Section 13 or 15(d) of 1934 Act subsequent to the time the Registration Statement becomes effective; and
(ii) in the event that any document is filed with any Commission or the SEC subsequent to the time the Registration Statement becomes effective that is deemed to be incorporated by reference in each Canadian Prospectus, if required by the U.S. Securities Act, file such document as an exhibit to the Registration Statement by post-effective amendment or otherwise in accordance with the U.S. Securities Act or the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.;
(k) The Company will promptly provide you with copies of all correspondence not to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, public announcement between the date hereof and the Over-Allotment Closing Date without first consulting with the Underwriters;
(l) prior to the extent completion of the Offering, allow the Underwriters to review the Prospectus and conduct all due diligence which the Underwriters may reasonably practicablerequire in order to fulfil their statutory obligations as Underwriters and in order to enable them to execute, acting prudently and responsibly, the Company will permit you certificates required to comment on any press release be executed by the Underwriters in such documents, including, without limitation, all corporate and operating records, financial information (including budgets), copies of the financial statements to be incorporated by reference in the Prospectus and access to key officers of the Corporation;
(m) maintain its status as a “reporting issuer” or other communication.the equivalent not in default in each province and territory of Canada for a period of two years from the Closing Date;
(n) The Company will use maintain its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and the Investor Warrant its Common Shares on The Nasdaq SmallCap Market.the Exchanges for a period of two years from the Closing Date;
(o) The Company deliver to the Underwriters and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that legal counsel, as applicable:
(i) transactions are executed at the time of execution of the Final Prospectus by the Underwriters, a long form comfort letter (the “Comfort Letter”) of the Corporation’s auditors and to the extent required, the Corporation’s former auditors, addressed to the Underwriters and to the directors of the Corporation and dated as of the date of the Final Prospectus, in accordance with management’s authorizationform and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the verification of the financial information and accounting data contained in the Preliminary Prospectus and the Final Prospectus, other than providing comfort on financial information for the interim periods ended March 31, 2007, June 30, 2007, March 31, 2008 and June 30, 2008 and to such other matters as the Underwriters may reasonably require;
(ii) transactions are recorded as necessary to permit at the preparation time of execution of the CompanyFinal Prospectus, a favourable legal opinion (the “French Language Prospectus Opinion”) of the Corporation’s consolidated counsel, or such counsel’s Québec agent, addressed to the Underwriters and their legal counsel and dated as of the date of the Final Prospectus, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably to the effect that the French language versions of each of the Prospectus, together with each document incorporated for reference therein (other than financial statements and to maintain accountability for other financial data contained therein covered by the assets French Language Auditors’ Opinion), is in all material respects a complete and proper translation of the Company and its subsidiaries, English version thereof;
(iii) access at the time of execution of the Final Prospectus, a favourable opinion (the “French Language Auditors’ Opinion”) of the Corporation’s auditors addressed to the assets Underwriters and their legal counsel and dated as of the Company date of the Final Prospectus, in form and its subsidiaries content acceptable to the Underwriters and their legal counsel, acting reasonably, to the effect that the financial statements and other financial data contained or incorporated by reference in the French language versions of the Prospectus, is permitted only in accordance with management’s authorization, all material respects a complete and proper translation of the English version thereof;
(iv) at the recorded accounts Time of Closing on the Closing Date, a long form comfort letter (“Bring Down Comfort Letter”) of the assets Corporation’s auditors addressed to the Underwriters and dated as of the Company Closing Date in form and its subsidiaries are compared with existing assets at reasonable intervals.content acceptable to the Underwriters and their legal counsel, acting reasonably, bringing forward to the Closing Date the information contained in the Comfort Letter, and providing comfort on financial information for the interim periods ended March 31, 2007, June 30, 2007, March 31, 2008 and June 30, 2008 and addressing such other matters as the Underwriters may reasonably require;
(pv) If at the Company elects Time of Closing on the Closing Date, favourable legal opinions (the “Legal Opinions”) of the Corporation’s various legal counsel (excluding U.S. legal counsel), addressed to rely on Rule 462(b) the Underwriters and their legal counsel and dated as of the Closing Date, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the Final Prospectus including the disclosure therein under the 1933 Actheading “Enforceability of Civil Liabilities by U.S. Investors, Certain Canadian Federal Income Tax Matters and Eligibility for Investment”, the Company shall both file an Abbreviated Registration Statement with issuance, trade and distribution of the SEC Units, Warrant Shares and any Additional Common Shares and/or Additional Warrants, as applicable, without restriction, in the Qualifying Jurisdictions, corporate status, corporate authority and capacity, qualification to carry on business, enforceability, legal compliance, issued capital, listing, tax matters, litigation matters, compliance with Rule 462(b) Quebec language laws and pay to such other matters as the applicable fees in accordance with Rule 111 of Underwriters may require, acting reasonably. In addition, the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.Corpo
Appears in 2 contracts
Sources: Underwriting Agreement (Great Basin Gold LTD), Underwriting Agreement (Great Basin Gold LTD)
Additional Covenants. 6.1 The Company covenants and agrees with the Placement Agents thatUnderwriters that it shall:
(a) The file with the TSX and NYSE all required documents and pay all required filing fees, and do all things required by the rules and policies of the TSX and NYSE, as applicable, in order to obtain: (i) prior to filing the Prospectus Supplement, conditional approval from the TSX for the listing of the Offered Shares on the TSX, subject only to Standard Listing Conditions, which the Company will agrees to fully satisfy in a timely transmit manner prior to or as soon as practicable after Closing, as required by the TSX; and (ii) prior to Closing, the requisite acceptance from the NYSE for the listing of the Offered Shares on the NYSE;
(b) with respect to the filing of the Prospectus as contemplated herein, fulfill all legal requirements required to be fulfilled by the Company in connection therewith, in each case in form and substance satisfactory to the Underwriters (acting reasonably) as evidenced by the Underwriters’ execution of the certificates attached thereto;
(c) prior to the completion of the Offering, allow the Underwriters to review the Offering Documents and conduct all due diligence which the Underwriters may reasonably require in order to fulfill their statutory obligations as underwriters and in order to enable the Underwriters to execute, acting prudently and responsibly, the certificates required to be executed by the Underwriters in such documents, including, without limitation, corporate and operating records, documentation with respect to Property Rights, technical information, financial information (including budgets) and access to key officers of the Company;
(d) during the period prior to the completion of the Offering, promptly notify the Underwriters in writing of any material change (actual or proposed) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital of the Company, any change in Applicable Securities Law which reasonably requires the filing of any Supplementary Material, or of any change which is of such a nature as to result in a misrepresentation in the Prospectus or any Prospectus Amendment and:
(i) the Company shall, within any applicable time limitation, comply with all filing and other requirements under the Applicable Securities Laws of the Qualifying Jurisdictions, and with the rules of the TSX and NYSE, applicable to the Company as a result of any such change;
(ii) however, notwithstanding the foregoing, the Company shall not file any Prospectus Amendment or any other material supplementary to the Prospectus (all such Prospectus Amendments and supplementary material being Supplementary Material) without first obtaining the approval of the Underwriters as to the form and content thereof, which approval shall be provided on a timely basis; and, in addition to the foregoing, the Company shall, in good faith, discuss with the Underwriters any material change in circumstances (actual or proposed) which is of such a nature that there is or ought to be consideration given by the Company as to whether notice in writing of such change need be given to the Underwriters pursuant to this subparagraph;
(e) deliver to the Underwriters duly executed copies of any Supplementary Material required to be filed by the Company in accordance with subsection (d) above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional Comfort Letter to that required by subsection (k) below;
(f) cause commercial copies of the Prospectus, the U.S. Memorandum and Supplementary Material to be delivered to the Underwriters without charge, in such quantities and in such cities as the Underwriters may request, as soon as possible after the filing of the Prospectus Supplement or Supplementary Material, as the case may be, but in any event on or before 9:00 a.m. (Vancouver time) on the business day after the filing thereof, and such delivery will constitute the Company’s consent to the Underwriters’ use of such documents in connection with the Offering;
(g) by the act of having delivered each of the Prospectus and any amendments or supplements thereto, Prospectus Amendments thereto to the SEC for filing pursuant Underwriters, have represented and warranted to Rule 424(bthe Underwriters that all material information and statements (except information and statements relating solely to the Underwriters and provided by the Underwriters to the Company in writing) contained in such documents, at the respective dates of initial delivery thereof, comply with the Applicable Securities Laws of the 1933 Act Rules Qualifying Jurisdictions (and, with respect to the U.S. Memorandum, comply with applicable U.S. Securities Laws), are true and Regulations.correct in all material respects, and that such documents, at such dates, contain no misrepresentation and together constitute full, true and plain disclosure of all material facts relating to the Company, its Subsidiaries, the Offered Shares and the Over-Allotment Option, as required by the Applicable Securities Laws of the Qualifying Jurisdictions;
(bh) The prior to the Closing Time, fulfill to the satisfaction of the Underwriters all legal requirements (including, without limitation, compliance with Applicable Securities Laws) to be fulfilled by the Company has furnished to enable the Offered Shares to be distributed free of resale restrictions in the Qualifying Jurisdictions;
(i) use commercially reasonable efforts to maintain its status as a “reporting issuer” or will the equivalent not in default in each of the Qualifying Jurisdictions for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the purchase of all of the outstanding Common Shares of the Company;
(j) use commercially reasonable efforts to maintain its listing of the Common Shares on the TSX or NYSE (or a similar stock exchange or quotation system) for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the purchase of all of the outstanding common shares of the Company;
(k) deliver to the Placement Agents Underwriters and counsel for its legal counsel, as applicable:
(i) at the Placement Agents, without charge, conformed copies time of execution of the Registration Statement Prospectus by the Underwriter, a long form Comfort Letter (the “Comfort Letter”) from the Company’s auditors addressed to the Underwriters and dated as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement date of the Prospectus Supplement and each amendment thereto furnished based on procedures performed within two business days of the Prospectus Supplement, in form and content acceptable to the Placement Agents will be identical Underwriter, acting reasonably, relating to the electronically transmitted copies thereof filed with verification of the Commission pursuant financial information and accounting data contained in the Prospectus Supplement and to such other matters as the Underwriters may reasonably require;
(ii) at the Closing Time, such legal opinions (the “Legal Opinions”) of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, except the Company’s legal counsel (excluding U.S. legal counsel), and other legal counsel in the Qualifying Jurisdictions addressed to the extent permitted by Regulation S-T or by Rule 424(b) Underwriters and dated as of the 1933 Rules Closing Date, in form and Regulations. The Company will promptly notify content acceptable to the Placement Agents of Underwriters, acting reasonably, relating to the issuance by matters set forth in Schedule “C”;
(iii) at the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order andClosing Time, if any stop order is issuedOffered Shares are being sold in the United States, in accordance with Schedule “A” hereto, a legal opinion of the Company’s U.S. legal counsel (the “U.S. Legal Opinion”) addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) effect that such offer and sale of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which Offered Shares is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered registered under the 1933 Act U.S. Securities Act, it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares;
(iv) at the Closing Time, a certificate (the “Officers’ Certificate”) signed by any Placement Agents or dealerthe Chief Executive Officer and Chief Financial Officer of the Company, addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, certifying for and on behalf of the Company will complyand not in their personal capacities that, at its own expenseto the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry:
(A) the Company has complied, in all material respects, with all requirements imposed by covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the 1933 Act and Closing Time on the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.Closing Date;
(eB) Ifno order, during ruling or determination having the period when a prospectus relating to effect of ceasing or suspending trading in any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion securities of the Company or prohibiting the Placement Agents, 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 sale of the circumstances under which they were made, not misleading Offered Shares or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Company’s issued securities has been issued and no proceeding for such purpose is required pending or, to be delivered under the 1933 Act by any Placement Agents or dealerknowledge of such officers, threatened;
(C) the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale is a “reporting issuer” or its equivalent under the securities or blue sky laws of such jurisdictions as each of the Placement Agents may reasonably designate Qualifying Jurisdictions and will file eligible to use the short form and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that base shelf prospectus system established under NI 44-101 and NI 44-102;
(D) no material change relating to the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which has occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from since the date of this Agreement with respect to which the requisite material change report has not been filed and continuing no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(E) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time in all material respects (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(v) at the Closing Time, such favourable legal opinions in respect of each Material Subsidiary in form and substance satisfactory to the Underwriters acting reasonably, dated as of the Closing Date, with respect to the following matters: (i) the incorporation and existence under the laws of its jurisdiction of incorporation; (ii) as to the authorized and issued share capital and the holders of the issued and outstanding shares; and (iii) the requisite corporate power and capacity under the laws of its jurisdiction of incorporation to carry on its business as presently carried on and to own its properties;
(vi) at the Closing Time, such legal opinions (the “Title Opinions”) of the Company’s legal counsel, addressed to the Underwriters, dated as of the Closing Date, in the form and content acceptable to the Underwriters acting reasonably, with respect to title to and ownership rights in the Silver Sand Project and the Carangas Project;
(vii) at the Closing Time, a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, certifying the constating documents of the Company and the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, the authorization of this Agreement, listing on the TSX and NYSE and transactions contemplated by this Agreement;
(viii) at the Closing Time, certificates of good standing (or equivalent) for the Company, the Material Subsidiaries, New Pacific Offshore Inc., New Pacific Investment Corp. Limited, New Pacific Andes Corp. Limited and NPM Minerales S.A., each dated within one business day (or such earlier or later date as the Underwriters may accept) of the Closing Date;
(ix) at the Closing Time, a certificate of the Transfer Agent which certifies the number of Common Shares issued and outstanding as at close of business on the business day immediately prior to the Closing Date;
(x) at the Closing Time, the Comfort Letter, dated the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to the date which is one business day prior to the Closing Date, the information contained in the Comfort Letter;
(xi) at the Closing Time, such other materials (the “Closing Materials”) as the Underwriters may reasonably require and as are customary in a transaction of this nature, which Closing Materials will be addressed to the Underwriters and to such parties as may be reasonably directed by the Underwriters and will be dated as of the Closing Date or such other date as the Underwriters may reasonably require; and
(xii) from and including the date of this Agreement through to and including the date Closing Time, do all such acts and things necessary to ensure that all of the representations and warranties of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warranty of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect;
(l) not to directly or indirectly offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is 30 to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into Common Shares or other equity securities of the Company for a period of 90 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsCo-Lead Underwriters, offer for salesuch consent not to be unreasonably withheld, sell conditioned or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Companydelayed, except for in conjunction with: (i) the Securities; provided, however, that the Company may issue, or grant of stock options to purchase, shares of Common Stock and other similar issuances pursuant to any employee stock the share incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to other share compensation arrangements, provided that the periods covered exercise price thereof shall not be less than the Purchase Price; (ii) the exercise of outstanding stock options, restricted share units and warrants; and (iii) the issuance of securities by the financial statements appearing Company in connection with acquisitions in the Registration Statement and the Prospectus or incorporated therein by reference.normal course of business;
(m) Except as required deliver lock-up agreements executed by laweach of the Company’s executive officers and directors pursuant to which they agree, prior to the Closing Date, not to directly or indirectly offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into Common Shares or other equity securities of the Company will issue no press release for a period of 90 days after the Closing Date, without the prior written consent of the Co-Lead Underwriters, such consent not to be unreasonably withheld, conditioned or other communicationdelayed, directly or indirectlyexcept in conjunction with: (i) the exercise of outstanding stock options, restricted share units and will hold no press conferences with respect warrants; and (ii) in order to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities accept a bona fide takeover bid made to all securityholders of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.similar business combination transaction;
(n) The Company will use its reasonable best efforts prior to obtain approval for, and maintain the quotation filing of the Shares Prospectus Supplement, provide evidence satisfactory to the Underwriters of the conditional approval of the TSX of the listing and posting for trading on the Investor Warrant Shares on The Nasdaq SmallCap Market.TSX of the Offered Shares, subject only to satisfaction by the Company of customary post-closing conditions imposed by the TSX in similar circumstances (the “Standard Listing Conditions”);
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof; of: (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation issuance by any Regulatory Authority of any order suspending or preventing the use of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and Offering Documents; (ii) the time that confirmations are given suspension of the qualification of the Offered Shares for offering or sentsale in any of the Qualifying Jurisdictions; (iii) the institution, as specified by Rule 462(b)(2).
threatening or contemplation of any proceeding for any such purposes; or (qiv) The Company will execute and deliver any stock purchase agreement reasonably requested requests made by any Investor.Regulatory Authority for amending or supplementing the Prospectus or any Supplementary Material or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The If the Registration Statement is not effective under the Act, the Company will timely transmit copies use its reasonable best efforts to cause the Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of the Prospectus, time when the Registration Statement has become effective. The Company
(1) will prepare and any amendments or supplements thereto, to timely file with the SEC for filing pursuant to Commission under Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to , if required, a Prospectus containing information previously omitted at the Placement Agents and counsel for the Placement Agents, without charge, conformed copies time of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or in reliance on Rule 430A of the initiation Rules and Regulations or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
otherwise; (c2) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company and
(3) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as is reasonably required for the laws offering, sale and distribution of any jurisdictionthe Shares.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your reasonable judgment or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders pursuant to the Securities and to holders Exchange Act of 1934 (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning 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 Act), a consolidated earnings statement of the Company and its Subsidiary (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day complying with Section 11(a) of the month next succeeding Act and the month in which occurred the effective date Rules and Regulations thereunder (within the meaning of including Rule 158) and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of two years from the Registration StatementClosing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after On the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the net proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects . The Company shall file such reports with the requirements Commission with respect to the sale of Item 504 Shares and the application of Regulation S-K.the proceeds therefrom as may be required in accordance with Rule 463 under the Act, including, without limitation, Form SR.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiary for any quarterly periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nk) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Acton, the Company shall both file an Abbreviated Registration Statement with National Association of Securities Dealers, Inc. Automated Quotation/National Market System (the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2"NASDAQ/NMS").
(ql) The For a period of 180 days from the Effective Date, the Company will execute not directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and deliver any except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of employee or director stock options, stock purchase agreement reasonably requested by or other employee benefit plans.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue any Investorpress releases or other communications directly or indirectly and will hold no press conferences with respect to the Company or its Subsidiary, the financial condition, results of operations, business, properties, assets or liabilities of the Company or its Subsidiary, or the offering of the Shares, without your prior written consent.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents thatSeller shall:
(a1) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, enter into an amendment to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel each Newco Employee's existing option agreements which provide for the Placement Agents, without charge, conformed copies purchase of the Registration Statement as originally filed and equity securities of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed Seller to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations provide that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur no such options will terminate as a result of whichthe Newco Employee's continued employment with Newco following the Closing, in the opinion of the Company or the Placement Agents, 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, not misleading or and (ii) it any unvested options held by such Newco Employee shall be necessary to amend vest on the earlier of (x) one year anniversary date of the Closing Date (the "ANNIVERSARY DATE") if such Newco Employee does not terminate his or supplement the Registration Statement her employment with Newco or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act an affiliate or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish successor of Newco on or prior to the Placement Agents a reasonable number Anniversary Date, or (y) the date on which such Newco Employee ceases to be an employee of copies ofNewco, or an affiliate or successor of Newco, by reason of such amendment Newco Employee's employment being terminated by Newco or supplement an affiliate or successor of Newco for any reason other filing that will correct such statement or omission or effect such compliance.than Cause; and
(f2) During the period when pay to each such Newco Employee, within thirty days following December 31, 1999, a prospectus relating "stay in place bonus" in an amount equal to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws 25% of such jurisdictions as Newco Employee's annual base salary, excluding bonus and commissions, if any, prior to the Placement Agents may reasonably designate Closing if such Newco Employee is continuously employed by Newco, or an affiliate or successor of Newco, between the Closing and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsDecember 31, 1999; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.and
(g3) In accordance with Section 11(a) of on the 1933 Act and Rule 158 of the 1933 Act Rules and RegulationsClosing Date, the Company will make generally available to its security holders and to holders of the Securities, or as soon as practicablepracticable thereafter, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerpay each Newco Employee all accrued wage, the Company will file promptly salary, bonus and commission for all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing periods prior to and including the date that Closing Date to which such person is 30 entitled; and
(4) pay or provide for all other employee benefits maintained by Seller for all periods prior to and including the Closing Date, all in accordance with applicable law; and
(5) as soon as possible after the Closing Date, but in no event later than thirty (30) days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement deliver to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with Newco copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior amendments to the Closing Date, employment agreements between Seller and the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent Newco Employees which evidence certain modifications to the periods covered by the financial statements appearing in the Registration Statement employment agreements between Seller and the Prospectus or incorporated therein by reference.
Newco Employees (m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any former employees of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2Seller).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents Agent that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents Agent and to counsel for the Placement Agents, without charge, conformed Agent (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agent or counsel for the Placement Agent and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agent as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agent may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agent of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the Placement Agent’s consent before taking, or failing to take, any action that would cause the Company to make an offer of Shares that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule I hereto.
(d) The Company will not take any action that would result in the Placement Agent being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations a Free Writing Prospectus prepared by or on behalf of the Placement Agent that the Placement Agent otherwise would not have been required to file thereunder.
(e) If the 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 or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, the Company will forthwith prepare, file with the SEC and furnish, at its own expense, to the Placement Agent, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents Agent shall not previously have been advised and furnished with a copy or to which the Placement Agents Agent shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agent after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any the Placement Agents or dealerAgent, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any the Placement Agents or dealerAgent, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Agent shall occur as a result of which, in the opinion of the Company or the Placement AgentsAgent, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Agent a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents or dealerAgent, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Agent may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make has made generally available to its security holders and to holders of the Securities, as soon as practicable, Shares an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jk) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Disclosure Package and the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kl) The Company will promptly provide you the Placement Agent with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement Statement, the Disclosure Package or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(lm) Prior to the Closing Date, the Company will furnish to youthe Placement Agent, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and for trading on, the Investor Warrant Shares on The Nasdaq SmallCap Global Market.
(o) The Company will cause its directors and officers to furnish to the Placement Agent, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Placement Agent, pursuant to which each such person shall agree not to, and the Company will not, and will not publicly announce any intention to, during the period ending 90 days after the date of the Prospectus, without the prior written consent of the Placement Agent, directly or indirectly, (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; (2) 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 or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The restrictions contained in the preceding paragraph shall not apply to (a) the issuance by the Company of 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 Placement Agent has been advised in writing or the granting or exercise of options or stock purchase rights pursuant to the Company’s stock option and stock purchase plans, whenever granted; provided that the underlying shares of Common Stock issued to any person who has delivered a lock−up agreement pursuant to this Section 4(o) hereto shall continue to be subject to the restrictions contained in the immediately preceding paragraph or such lock−up agreement, as applicable, except to the extent of any shares sold in order to raise funds sufficient to pay the exercise price and any tax on exercise of options; (b) the issuance by the Company of shares of Common Stock or options to purchase shares of Common Stock to, or the repurchase by the Company of unvested shares of Common Stock upon termination of service from, an employee, director, consultant other service provider, pursuant to the Company's stock option or stock purchase plans in effect on the date hereof or approved by the stockholders before the date hereof; provided that the shares of Common Stock or options to purchase shares of Common Stock issued to the Company's directors and executive officers shall be subject to the restrictions contained in the lock−up agreements delivered pursuant to this Section 4(o), except to the extent of any shares sold in order to raise funds sufficient to pay the exercise price and any tax on exercise of options; and (c) the filing by the Company of any registration statement with the Commission on Form S−8 relating to the offering of securities pursuant to the terms of a stock option or stock purchase plan of the Company in effect on the date hereof or approved by the stockholders before the date hereof.
(p) Notwithstanding the foregoing, if (1) during the last 17 days of the 90−day restricted period the Company issues an earnings release or material news or a material event relating to 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 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. The Company shall promptly notify the Placement Agent of any earnings release, news or event that may give rise to an extension of the initial 90−day restricted period.
(q) At the time of execution of this Agreement and on the Closing, the Placement Agent shall have received from ▇▇▇▇▇▇▇, a letter or letters, in form and substance satisfactory to the Placement Agent, addressed to the Placement Agent with respect to: (i) the estimated quatities of the Company’s proved net reserves, (ii) the future net revenues from those reserves, (iii) their present value as set forth in the Registration Statement and the Prospectus and (iv) such related matters as the Placement Agent shall reasonably request.
(r) The Company and its subsidiaries Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which that provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's general or specific authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its subsidiariesSubsidiaries, (iii3) access to the assets of the Company and its subsidiaries Subsidiaries is permitted only in accordance with management’s 's general or specific authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries Subsidiaries are compared with existing assets at reasonable intervalsintervals and appropriate action is taken with respect to any differences.
(ps) If the Company elects to rely on During any period in which a prospectus (or in lieu thereof, a notice contemplated by Rule 462(b173(a) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations) is required by law to be delivered by the earlier Placement Agent, the Company will promptly file all documents required to be filed with the SEC pursuant to Sections 13, 14 or 15(d) of (i) 9:00 p.m.the 1934 Act and will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information, St. Louis time, on which may be unaudited. The Company will deliver to the date of this Agreement, and (ii) the time that confirmations are given or sentPlacement Agent similar reports with respect to any significant Subsidiaries, as specified by Rule 462(b)(2)that term is defined in the 1933 Act Rules and Regulations, that are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (s) shall be furnished as soon as practicable after such report, document or information becomes available.
(qt) The Company will execute comply with all applicable securities and deliver any stock purchase agreement reasonably requested by any Investor.other applicable laws, rules and re
Appears in 1 contract
Additional Covenants. The Company covenants Crosstex Parties covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Company will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Company will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Company shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement Agentscounsel for the Underwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of two years from the Closing Date, furnish or make available to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Company to holders of Shares or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(i) During The Crosstex Parties will not, during the period beginning from 180 days after the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will notprospectus, without the prior written consent of the Placement Agents▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., directly or indirectly, offer for sale, sell or enter into any agreement contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose ofof any shares of Common Stock or any Common Units or Subordinated Units, any equity securities convertible into, or exercisable or exchangeable for, shares of Common Stock or Common Units or Subordinated Units or any other rights to acquire such shares of Common Stock or such Common Units or Subordinated Units, other than pursuant to employee benefit plans as in existence as of the Company, except for date of the SecuritiesProspectus; provided, however, that the Company may issue, or grant options to purchase, any recipient of shares of Common Stock pursuant or any Common Units or Subordinated Units will furnish to any employee stock incentive plan existing on ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. a letter substantially similar to that required by Section 6(l) below with respect to the period between the date hereofof any such issuance and the date 180 days after the date of the Prospectus.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nk) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(ol) The Company will cause its directors and its subsidiaries will maintain executive officers to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and keep accurate books and records reflecting their assets and maintain internal accounting controls substance satisfactory to counsel for the Underwriters, pursuant to which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorizationeach such person shall agree not to directly or indirectly, (ii) transactions are recorded as necessary offer for sale, contract to permit sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock or any Common Units or Subordinated Units, or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock or any Common Units or Subordinated Units or any other rights to acquire such shares of Common Stock or Common Units or Subordinated Units, during the preparation 180 days after the date of the Company’s consolidated financial statements and to maintain accountability for Prospectus, without the assets prior written consent of the Company and its subsidiaries▇.▇. ▇▇▇▇▇▇▇ & Sons, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.Inc.
(pm) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company Acquiring Companies will timely transmit copies promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments, and governmental charges or levies imposed upon the income, profits, property or business of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsAcquiring Companies; provided, however, that the Company shall any such tax, assessment, charge or levy need not be required paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Acquiring Companies shall have set aside on their books adequate reserves therefor and deposited at Closing into an escrow account an amount to qualify cover any such tax, assessment, charge or levy; and provided, further, that the Acquiring Companies will pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor. The Acquiring Companies will promptly pay or cause to be paid when due, or in conformance with customary trade terms, all other indebtedness incident to the operations of the Acquiring Companies;
(b) The Acquiring Companies will keep their properties in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all needful and proper repairs, renewals, replacements, additions and improvements thereto; and the Acquiring Companies will at all times comply with the provisions of all material leases to which any of them is a foreign corporation party or shall under which any of them occupies property so as to prevent any loss or forfeiture thereof or thereunder;
(c) The Acquiring Companies will keep true records and books of account in which full, true and correct entries will be required made of all dealings or transactions in relation to qualify as a dealer their business and affairs in securities or to file a general consent to service accordance with its past practices consistently applied;
(d) The Acquiring Companies will comply with the requirements of process under the laws all applicable laws, rules, regulations and orders of any jurisdiction.governmental authority, a breach of which could have a material adverse effect on their businesses or credit;
(e) The Acquiring Companies shall maintain in full force and effect its corporate existence, rights and franchises and all licenses and other rights to use patents, processes, licenses, trademarks, trade names or copyrights owned or possessed by them and deemed by the Acquiring Companies to be necessary to the conduct of their businesses;
(f) The Acquiring Companies will, consistent with their practices in the ordinary course of business, endeavor to retain its business relationships with its customers and suppliers that they believes to be advantageous; and
(g) In accordance with Section 11(a) The Acquiring Companies shall deliver to OPI copies of the 1933 Act its statements of operation and Rule 158 of the 1933 Act Rules financial condition and Regulations, the Company will make generally available to its security holders similar statements as and to holders of the Securities, as soon as practicable, an earning statement when prepared (which need not be auditedif at all) in reasonable detail covering the 12 months beginning not later than the first day ordinary course of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementtheir businesses.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Merger Agreement (Onsource Corp)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance of any stop order Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, and, if any stop order is issuedrequested by you, to obtain will confirm such notice in writing of the lifting thereof at time when the earliest possible moment.
(c) Registration Statement has become effective. The Company (i) will not prepare and timely file any amendment or supplement to with the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Commission under Rule 424(b) of the 1933 Act Rules and Regulations, if required, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on the Rules and Regulations that differs from or otherwise, (ii) will not, except in connection with subsequent offerings of securities under the Prospectus as filed pursuant shelf registration after thirty (30) days following the consummation of the transactions herein contemplated unrelated to such Rule 424(b)) and will not the Shares, file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed amendment to be incorporated by reference into the Registration Statement or supplement to the Prospectus, Prospectus of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance in all material respects with the 1933 Act Rules and Regulations; , and the Company (iii) will promptly notify you after it shall have received notice thereof and, if requested by you, will confirm such notice in writing of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, and, if requested by you, will confirm such notice in writing after it has received notice or obtained knowledge thereof, of any comments of the Securities is required Commission with respect to be delivered under the 1933 Act by Registration Statement, of any Placement Agents request of the Commission for amendment of the Registration Statement or dealerfor supplement to the Prospectus or for any additional information, or of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threat of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under (or obtain exemptions from the application of) the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be reasonably required to continue such qualifications or exemptions in effect for so long a period as the laws Underwriters may reasonably request. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any jurisdictionproceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(gd) In accordance with Section 11(aThe Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus (including all documents incorporated by reference therein) as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, in connection with the offering or sale of the 1933 Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. The Company will deliver to you at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto, including all exhibits filed therewith or incorporated by reference therein, and all documents incorporated by reference in the Prospectus, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request. The Company will not file, except in connection with subsequent offerings of securities under the shelf registration after thirty (30) days following the consummation of the transactions herein contemplated unrelated to the Shares, any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period when, in the opinion of counsel for the Underwriters, a prospectus is required by the Act Rules and Regulationsto be delivered in connection with sales by any Underwriter or dealer, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the reasonable judgment of the Company or in your reasonable judgment or in the written opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law.
(f) The Company will make generally available to its security holders and to holders of the Securitiesshareholders, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or national securities market pursuant to the requirements of such exchange or market or with the Commission pursuant to the Act or the 1934 Act and such other information concerning the Company as you may request. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the net proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to 30 days after the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is consent except as otherwise required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(om) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and will maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Omega Healthcare Investors Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company Within thirty (30) calendar days following Seller’s notice of termination under Section 7.01(f), Buyer shall file with the Securities and Exchange Commission (“SEC”) a Registration Statement on Form S-3 for a Shelf Registration (or Form S-1 if Form S-3 is not then available for use by Buyer) (the “Shelf Registration Statement”) covering the resale of all the Registrable Securities (determined as of two (2) Business Days prior to such submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the fifth (5th) Business Day after the date Buyer is notified (orally or in writing, whichever is earlier) by the SEC that the Shelf Registration Statement will timely transmit copies not be “reviewed” or will not be subject to further review, unless such declaration of effectiveness would be legally prohibited. Buyer shall provide notice to Seller within one (1) Business Day following (i) the filing of the ProspectusShelf Registration Statement, (ii) Buyer’s receipt of notice from the SEC that the Shelf Registration Statement either will or will not be reviewed, and (iii) the effectiveness of the Shelf Registration Statement. Such Shelf Registration Statement shall provide for the resale of the Registrable Securities included therein pursuant to any amendments method or supplements theretocombination of methods legally available to, to and requested by, Seller. Buyer shall maintain the Shelf Registration Statement in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep the Shelf Registration Statement continuously effective and available for filing pursuant use to Rule 424(b) permit Seller to sell the Registrable Securities included therein in compliance with the provisions of the 1933 Securities Act Rules and Regulationsuntil such time as there are no longer any Registrable Securities.
(b) The Company has furnished or will deliver Seller understands that the Registrable Securities will, upon issuance, be “restricted securities” under the Securities Act of 1933, as amended (the “Securities Act”), and may not be transferred absent registration under the Securities Act (including pursuant to the Placement Agents Shelf Registration Statement) or an exemption therefrom. To ensure compliance with applicable securities laws, Buyer may issue appropriate “stop-transfer” instructions to its transfer agent and counsel may include customary restricted securities legends on any book-entry security entitlement for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible momentRegistrable Securities.
(c) The Company will not file In connection with any amendment sale or supplement to disposition of the Registration Statement, the Prospectus (or any other prospectus relating to the Registrable Securities filed by Seller pursuant to Rule 424(b) 144 under the Securities Act or pursuant to any other exemption under the Securities Act such that the subsequent purchaser acquires freely tradable shares, upon compliance by Seller with the reasonable requirements of the 1933 Act Rules transfer agent for the Registrable Securities (the “Transfer Agent”), if requested in writing by Seller, Buyer shall cause the Transfer Agent to timely remove any restrictive legends related to the book entry account holding such transferred Registrable Securities and Regulations that differs from make a new, unlegended entry for such book entry Registrable Securities in the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination name of the offering transferee without restrictive legends, provided that ▇▇▇▇▇ has received customary representations and other documentation reasonably acceptable to Buyer in connection therewith. Subject to receipt by Buyer of customary representations and other documentation reasonably acceptable to Buyer in connection therewith, upon the earlier of such time as the Registrable Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating are eligible for resale pursuant to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, the Prospectus as then amended or supplemented would include any untrue an effective registration 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, not misleading or (ii) it have been sold pursuant to Rule 144 (each, a “Legend Removal Event”), Buyer shall be necessary (a) deliver to amend or supplement the Registration Statement or Transfer Agent irrevocable instructions that the Prospectus to comply with the 1933 ActTransfer Agent shall make a new, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SECunlegended entry for such book entry Registrable Securities, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fb) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval forcause its counsel to deliver to the Transfer Agent one or more opinion letters to the effect that the removal of such legends in such circumstances as may be effected under the Securities Act. From and after the earliest Legend Removal Event, and maintain upon any written request by Seller, Buyer shall promptly cause book entries evidencing the quotation Registrable Securities to be replaced with book entries, as the case may be, which do not bear such restrictive legends, provided the provisions of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that either clauses (i) transactions are executed in accordance with management’s authorization, or (ii) transactions above, as applicable, are recorded as necessary satisfied with respect to permit the preparation such Registrable Securities. Buyer shall be responsible for all fees of the Company’s consolidated financial statements its Transfer Agent, its outside counsel and to maintain accountability for the assets any other of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement expenses associated with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)legend removal process described herein.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, and any free writing prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433 of the 1933 Act Rules and Regulations, as applicable.
(b) The Company has furnished or will deliver to the Placement Agents Representative, and to counsel for the Placement Agents, without charge, conformed Underwriters (i) four signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto and of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein and documents incorporated in, or deemed filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters through the Representative as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus, Time of Sale Prospectus and certificates each free writing prospectus (to the extent not previously delivered) as the Representative may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representative of experts. The copies any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus and Time of Sale Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, the Prospectus or preliminary prospectus supplement Time of Sale Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus, Time of Sale Prospectus or any free writing prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed. The Company will 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. The Company will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the 1933 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.
(d) If the Time of Sale Prospectus 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 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 the 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, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(e) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus and Time of Sale Prospectus.
(ef) If, during the period when a prospectus the Prospectus or Time of Sale Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 1▇▇▇ ▇▇▇) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentative, the Prospectus and the Time of Sale 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, not misleading misleading, (ii) any event shall occur as a result of which any free writing prospectus conflicted with or would conflict with the information in the Registration Statement as set forth in Rule 433 under the 1933 Act, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Prospectus or the Time of Sale Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representative a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus the Prospectus or Time of Sale Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 1▇▇▇ ▇▇▇) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(hi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent registered public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of five years from the Closing Date, upon written request of the Underwriters, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters upon written request similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(ij) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 90 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentative, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for (A) the Securities; providedShares, however, that the Company may issue, or grant options to purchase, (B) any shares of Common Stock issued upon exercise of warrants or notes outstanding as of the date hereof described in the Prospectus or (C) any options issued pursuant to any employee stock incentive or option plan existing on described in the date hereofProspectus or any Common Stock issued upon exercise thereof.
(jk) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.K and will file such reports with the SEC with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by the 1933 Act or the 1934 Act or by the applicable rules and regulations thereunder.
(kl) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lm) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mn) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariesCompany, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesCompany, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(no) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(op) The Company will cause its directors and its subsidiaries officers and each holder of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock, to furnish to you, on or prior to the date of this Agreement, a letter, in form substantially as set forth on Attachment 1.
(q) The Company will maintain and keep accurate books and records reflecting their its assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s general or specific authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its subsidiariesCompany, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s general or specific authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsintervals and appropriate action is taken with respect to any differences.
(pr) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qs) If at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(t) During a period of 180 days from the Effective Date, the Company shall not, without the consent of A.▇. ▇▇▇▇▇▇▇ & Sons, Inc., file a registration statement under the 1933 Act except for any registration statement registering shares under any employee benefit plan described on the Prospectus.
(u) The Company will execute have engaged, prior to the Closing Date, Computershare Trust Company, N.A. or another institution reasonably satisfactory to A.▇. ▇▇▇▇▇▇▇ & Sons, Inc., to act as transfer agent and deliver any stock purchase agreement reasonably requested registrar following the Closing Date.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and will 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 S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(w) The Company will establish and maintain disclosure controls and procedures and internal control over financial reporting as are currently required (as such terms are defined in Rule 13a-15 and 15d-15 under the 1934 Act); the Company’s disclosure controls and procedures (i) will be designed to ensure that information required to be disclosed by any Investorthe Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to management, including the principal executive and principal financial officer of the Company, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, and that such information is recorded, processed, summarized and reported, within the time periods specified in the 1934 Act Rules and Regulations; (ii) will be evaluated for effectiveness; and as required by the 1934 Act Rules and Regulations and (iii) will be effective in all material respects to perform the functions for which they were established.
Appears in 1 contract
Sources: Underwriting Agreement (Cardica Inc)
Additional Covenants. The Company covenants Partnership Entities jointly and agrees severally covenant and agree with the Placement Agents Underwriters that:
(a) The Company Partnership will timely transmit copies of the ProspectusProspectus in a form approved by the Representative, and any amendments or supplements theretothereto (subject to the provisions of this Section 6), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulationsor, if applicable, Rule 430A(a)(3).
(b) The Company has furnished or Partnership will deliver to the Placement Agents Representative, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Representative as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Disclosure Package, the Prospectus and certificates any Issuer Free Writing Prospectus, and any amendment or supplement thereto, as the Representative may reasonably request; the Partnership will promptly advise the Representative when the Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the SEC; if there is a post-effective amendment to the Registration Statement that is not effective under the Act, the Partnership will use its commercially reasonable efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Representative, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Representative of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best commercially reasonable efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus or any Rule 462(b) Registration Statement (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Representative shall not previously have been advised and furnished with a copy or to which the Placement Agents Representative shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Representative after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed on it by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in forceExchange Act, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(e) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which (i) the Disclosure Package or any Issuer Free Writing Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading or (ii) any Issuer Free Writing Prospectus would conflict with the information in the Registration Statement or the Prospectus, the Partnership will (A) notify promptly the Representative so that any use of the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, may cease until it is amended or supplemented; (B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, to correct such statement, omission or conflict; and (C) supply any such amendment or supplement to the Underwriters in such quantities as they may reasonably request.
(f) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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 mademade or the circumstances then prevailing, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the Exchange Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECSEC (subject to Section 6(c) of this Agreement), and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise reasonably cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to securities, file a general consent to service of process under the laws of any jurisdiction, or subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company The Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158complying with Section 11(a) of the Registration StatementAct and the rules and regulations of the Commission thereunder (including, at the option of the Partnership, Rule 158).
(hi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
. The Partnership will, for a period of two (i2) During the period beginning years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available to the Company Underwriters via the Commission's Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the Act or the Exchange Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in the Partnership's financial statements. Any report, document or other information required to be furnished, delivered or made available under this paragraph (i) shall be furnished, delivered or made available as soon as practicable after such report, document or information becomes publicly available.
(j) The Abraxas Parties will not, during the 180 days after the date of the Prospectus, without the prior written consent of the Placement AgentsRepresentative, directly or indirectly, (1) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than the Option Units or Common Units issued (a) pursuant to employee benefit plans, qualified unit option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (b) to affiliates, but only to the extent that such affiliates agree to be bound by the terms of this paragraph or (c) in connection with acquisitions of assets or businesses in which Common Units are issued as consideration or are issued in order to pay the cash portion of any equity securities of the Companyconsideration in such an acquisition or to repay any indebtedness incurred in connection with such an acquisition, except for the Securities; provided, however, provided that the Company may issue, such acquisition results in an increase in available cash per unit on a pro forma basis) or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options to purchase, shares of Common Stock pursuant to any employee stock incentive plan 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (m) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with NASD Rule 2711, if (1) during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this paragraph (j) and the letters referred to in paragraph (m) below shall continue to apply until the expiration of the 18-day period beginning on the issuance of such earnings release or the occurrence of such material news or material event.
(jk) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “"Use of Proceeds” " in the ProspectusRegistration Statement, which description complies in all respects the Disclosure Package and the Prospectus and will file with the requirements of Item 504 of Regulation SSEC such information on Form 10-K.K or Form 10-Q as may be required by Rule 463.
(kl) The Company Partnership will promptly provide you the Representative with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceAct.
(m) Except as required by lawThe Abraxas Parties will cause (i) each of the Private Investors, other than the Selling Unitholder, to furnish to the Representative, on or prior to the Closing DateExecution Time, a letter in the Company will issue no press release or other communicationform of Exhibit C and (ii) the directors and officers of the General Partner and Abraxas, directly or indirectly, and will hold no press conferences with respect to furnish to the Company Representative, on or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conferencethe Execution Time, and, to a letter in the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.form of Exhibit D.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act), the Company Partnership shall both file an Abbreviated a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(o) It is understood that up to 150,000 of the Firm Units (the "Directed Units") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and persons having business relationships with the Abraxas Parties ("Directed Unit Participants") upon the terms and conditions set forth in the Registration Statement, the Disclosure Package and the Prospectus (the "Directed Unit Program") and in accordance with the rules and regulations of FINRA and that any allocation of such Directed Units among such persons will be made in accordance with timely directions received by the Representative from the Partnership. Under no circumstances will the Representative or any Underwriter be liable to any Abraxas Parties or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the public offering contemplated hereby.
(p) The Underwriters covenant and agree with the Partnership that unless they have obtained or will obtain, as the case may be, the prior written consent of the Partnership, they have not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any Free Writing Prospectus consented to by the Representative is hereinafter referred to as a "Permitted Free Writing Prospectus." The Selling Unitholder agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(q) The Company No Partnership Entity will execute and deliver take, directly or indirectly, any stock purchase agreement action that is designed to or that has constituted or that could reasonably requested by be expected to cause or result in the stabilization or manipulation of the price of any Investorsecurity of the Partnership to facilitate the sale or resale of the Firm Units.
Appears in 1 contract
Sources: Underwriting Agreement (Abraxas Energy Partners LP)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer sale, and sale the Rights for issuance, under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(aThe Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus (including all documents incorporated by reference therein) as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date a reasonable number of signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith or incorporated by reference therein and all documents incorporated by reference in the Prospectus, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders of the Securities1934 Act, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than 15 months after the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) Effective Date of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the Effective Date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and on the Investor Warrant Shares on The Nasdaq SmallCap MarketNYSE.
(om) The For a period of 90 days from the Effective Date, the Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorizationnot, (ii) transactions are recorded as necessary directly or indirectly offer, sell, contract to permit the preparation sell or otherwise dispose of any shares of the Company’s consolidated financial statements and 's Common Stock or Non-Voting Common Stock, any securities convertible or exchangeable for Common Stock or Non-Voting Common Stock or any other rights to maintain accountability acquire such shares without the prior written consent of A.G. ▇▇▇▇▇▇▇ & ▇ons, Inc., except for the assets Shares sold hereunder and except for sales of the Company and its subsidiaries, (iii) access shares of Common Stock to the assets Company's employees pursuant to the exercise of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) options under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, Company's stock option plans outstanding on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qn) The During any period in which a prospectus is required by law to be delivered by an Underwriter or dealer, the Company will execute and deliver any stock purchase agreement reasonably requested by any Investorpromptly file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) of the 1934 Act.
Appears in 1 contract
Sources: Underwriting Agreement (Reinsurance Group of America Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents Agent that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents Agent and to counsel for the Placement Agents, without charge, conformed Agent (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agent or counsel for the Placement Agent and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agent as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agent may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agent of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Securities or threatening the Warrant Shares for offering or sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the Placement Agent’s consent before taking, or failing to take, any action that would cause the Company to make an offer of Securities that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule I hereto.
(d) The Company will not take any action that would result in the Placement Agent or the Company being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations a Free Writing Prospectus prepared by or on behalf of the Placement Agent that the Placement Agent otherwise would not have been required to file thereunder.
(e) If the Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the SEC and furnish, at its own expense, to the Placement Agent and to any dealer upon request, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents Agent shall not previously have been advised and furnished with a copy or to which the Placement Agents Agent shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agent after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Agent shall occur as a result of which, in the opinion of the Company or the Placement AgentsAgent, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Agent a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities and Warrant Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Agent may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(hk) During The Company will apply the period when a prospectus relating to any proceeds from the sale of the Securities is required as set forth in the description under “Use of Proceeds” in the Disclosure Package and the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(l) The Company will promptly provide the Placement Agent with copies of all correspondence to be delivered and from, and all documents issued to and by, the SEC in connection with the registration of the Securities and the Warrant Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement, the Disclosure Package or the Prospectus.
(m) The Company will use its best efforts to obtain approval for, and maintain the listing of the Shares and the Warrant Shares on, The American Stock Exchange.
(n) The Company will cause its directors and officers to furnish to the Placement Agent, on or prior to the date of this Agreement, a “lock-up” letter or letters, in the form attached hereto as Exhibit C.
(o) During any period in which a prospectus (or in lieu thereof, a notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) is required by law to be delivered by the Placement Agents Agent or a dealer, the Company will promptly file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c)13, 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information information, which may be unaudited. The Company will deliver to the Placement Agent similar reports with respect to any significant Subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, that are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (o) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(mp) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesSubsidiaries, or the offering of the Securities, without your the Placement Agent’s prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you the Placement Agent of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you the Placement Agent to comment on any press release or other communication.
(nq) The Company will use its reasonable best efforts shall reserve and keep available at all times a sufficient number of shares of Common Stock for the purpose of enabling the Company to obtain approval for, and maintain issue the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap MarketShares.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pr) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis Eastern Standard time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Placement Agency Agreement (Cortex Pharmaceuticals Inc/De/)
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the For a period beginning of 45 days from the date of this Agreement and continuing to and including the date that is 30 days after the Closing DateAgreement, the Company will not, not without the prior written consent of the Placement AgentsRepresentatives (which may be by electronic mail), offer directly or indirectly (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, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly announce the intention to make any such offer, pledge, sale, sell contract to sell, purchase, grant, transfer, disposition or filing, or (ii) enter into any swap or other agreement to sellor transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Common Stock, whether any such swap, agreement, or otherwise dispose ofother transaction described in (i) or (ii) above is to be settled by delivery of Common Stock, any equity securities other securities, in cash or otherwise, except for (A) Common Stock issued pursuant to this Agreement, (B) Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, except (C) non-managing member units exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that such units referred to any employee stock incentive plan existing in this clause (C) are not exchangeable for Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Common Stock during such one year period), (D) Common Stock issuable upon the exchange of non-managing member units of subsidiaries of the Company outstanding on the date hereofof this Agreement or (E) registration statements filed in connection with future business combination transactions or registration statements on Form S-8 filed to register shares of Common Stock that are issuable pursuant to existing employee benefit plans of the Company.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationRepresentatives.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) The Company will cause each of its directors and executive officers set forth on Annex G hereto to execute and deliver to the Representatives “lock-up” agreements, each substantially in the form of Annex F hereto.
(q) If at any time during the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on 90-day period after the date of this Agreement, and any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the opinion of the Representatives the market price of the Shares has been or is likely to be materially affected (ii) regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the time that confirmations are given Prospectus), the Company will, after written notice from the Representatives advising the Company to the effect set forth above, forthwith consult with the Representatives concerning the issuance of a press release or sentother public statement, as specified by Rule 462(b)(2)responding to or commenting on such rumor, publication or event.
(qr) The Company will execute use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2012, the Company retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and deliver conducted annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2012 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) Continuing through the Closing Date (and, if applicable, the Option Closing Date) the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably requested by or pay anyone any Investorcompensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents Underwriter that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a term sheet or abbreviated term sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriter as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed and of each amendment thereto Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriter of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Common Stock for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of a particular distribution of Designated Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The After the date of the Pricing Agreement relating to an issuance of Designated Shares and prior to the Closing Date relating to any particular issuance of Designated Shares, the Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Common Stock filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Designated Shares by the Company Underwriter if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriter shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriter shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Designated Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Designated Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Designated Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriter shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriter, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriter a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Underwriter and during the period when a prospectus the Prospectus relating to any of the Securities Designated Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Designated Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriter may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesDesignated Shares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementPricing Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriter at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriter similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this the Pricing Agreement for such Designated Shares and continuing to and including the date that is 30 days after through the Closing Date (and, if applicable, the Option Closing Date) relating to such Designated Shares, the Company will not, without the prior written consent of the Placement AgentsUnderwriter, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, or publicly announce an intention to effect any such transactions, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofDesignated Shares.
(j) The Company will apply the proceeds from the sale of the Securities shares of Common Stock as set forth in the description under “"Use of Proceeds” " in the Prospectus, as amended or supplemented, which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Common Stock under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of the Pricing Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, the Company will furnish to you, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of the Pricing Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date) relating to any particular issuance of Designated Shares, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesCommon Stock, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Designated Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed or included on The Nasdaq SmallCap Marketthe NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 ActAct for the sale of any Designated Shares pursuant to a Pricing Agreement, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this the applicable Pricing Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the date of the Pricing Agreement of any particular issuance of Designated Shares, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith consult with you concerning the issuance of a press release or other public statement, responding to or commenting on such rumor, publication or event.
(1) Each time the Registration Statement or Prospectus is amended or supplemented (other than by an amendment or supplement by filing of a Current Report on Form 8-K which the Company deems to be immaterial or with respect to offerings of securities not pursuant to this Underwriting Agreement Standard Provisions), the Company will deliver or cause to be delivered forthwith to the Underwriter a certificate signed by an executive officer of the Company, dated the date of such amendment or supplement, as the case may be, in form reasonably satisfactory to the Underwriter, of the same tenor as the certificate referred to in Section 6(h) of this Agreement relating to the Registration Statement or the Prospectus as amended or supplemented to the time of delivery of such certificate.
(2) Each time the Company furnishes a certificate pursuant to Section 5(r)(1) of this Agreement, the Company will furnish or cause to be furnished forthwith to the Underwriter a written opinion of counsel for the Company. Any such opinion shall be dated the date of such amendment or supplement, as the case may be, shall be in a form satisfactory to the Underwriter and shall be of the same tenor as the opinion referred to in Section 6(c) of this Agreement, but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. In lieu of such opinion, counsel last furnishing such an opinion to the Underwriter may furnish to the Underwriter a letter to the effect that the Underwriter may rely on such last opinion to the same extent as though it were dated the date of such letter (except that statements in such last opinion will be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to the time of delivery of such letter.)
(3) Each time the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information or such amended or supplemental information is incorporated by reference in the Prospectus (except with respect to offerings of securities not pursuant to this Underwriting Agreement Standard Provisions), the Company shall cause its independent public accountants forthwith to furnish the Underwriter with a letter, dated the date of such amendment or supplement, as the case may be, in form satisfactory to the Underwriter, of the same tenor as the letter referred to in Section 6(e), with regard to the amended or supplemental financial information included or incorporated by reference in the Registration Statement or the Prospectus as amended or supplemented to the date of such letter; provided, however, that each time amended or supplemented financial information is incorporated by reference in the Prospectus to the Company's Quarterly Report on Form 10-Q or a Current Report on Form 8-K, the letter required to be delivered pursuant to this Section 5(r)(3) shall be delivered to the Underwriter only upon reasonable request.
(s) The Company will execute continue to qualify as a REIT under the Code.
(t) The Company has retained Ernst & Young as its qualified accountants. Each year, in the course of its audit, Ernst & Young reviews the Company's test procedures and deliver conducts annual compliance reviews designed to determine the Company's compliance with the REIT provisions of the Code and (ii) otherwise assists the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(u) The Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriter and counsel to the Underwriter and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock purchase agreement due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriter with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriter may from time to time reasonably requested by request. The Underwriter, counsel to the Underwriter, and their respective authorized representatives will use such information only in full compliance with Regulation FD.
(v) During the period beginning from the date of the Pricing Agreement for a particular issuance of Designated Shares and continuing through the Closing Date (and, if applicable, the Option Closing Date) relating to such Designated Shares, the Company agrees to not, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly any Investor.action designed to sta
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance in all material respects with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it has received notice or obtained knowledge thereof, of any comments of the Securities is required Commission with respect to be delivered under the 1933 Act Registration Statement, of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any Placement Agents stop order suspending the effectiveness of the Registration Statement or dealerthe use of the Prospectus or of the institution or threat of any proceedings for that purpose, and the Company will complyuse its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, at its own expenseif issued.
(c) The Company will cooperate with the Underwriters and their counsel in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of) the securities laws of such jurisdictions as they may have designated and will make such applications, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amendedfile such documents, and by the rules and regulations of the SEC thereunder, furnish such information as from time to time in force, may be reasonably necessary so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and dealings therein for so long as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall may be necessary to amend or supplement complete the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any distribution of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerShares, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need jurisdiction where it is not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Actnow so qualified. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent advise you promptly of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities suspension of the Company, except for the Securities; provided, however, that the Company may issue, qualification or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nexemption relating to) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed for offering, sale or trading in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given any jurisdiction or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.any
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholder, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed Underwriters (i) three signed copies of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance; provided, however, that should such event relate solely to the activities of any of the Underwriters, then the Underwriters will assume the expense of preparing and furnishing copies of any such amendment or supplement.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required by law to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections Section 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 180 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that Shares and the Company may issue, or grant options to purchase, shares of Common Stock issued to the Company's pursuant to any employee stock incentive plan existing the exercise of options outstanding on the date hereofhereof under the Company's employee stock option plan.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by lawlaw and upon providing you with prior written notice, prior to the Closing DateDate (and, if applicable, the Option Closing Date) neither the Company nor the Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(o) The Company and its [executive] officers and directors and each holder of 5% of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock (other than the Selling Shareholder) will furnish to you on or prior to the date of this Agreement, letters in form and substance satisfactory to counsel for the Underwriters, pursuant to which the Company and its [executive] officers and directors and each holder of 5% of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock (other than the Selling Shareholder), shall agree not to directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 180 days from the Effective Date, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options outstanding on the date hereof under the Company's stock option plan.
(p) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pq) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qr) If at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the common stock has been or is likely to be materially affected, regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus, except where otherwise required by law, the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(s) The Company Selling Shareholder agrees with the several Underwriters as follows:
(i) Such Selling Shareholder will execute cooperate to the extent necessary to cause the Registration Statement or any post- effective amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all Federal and deliver other taxes, if any, on the transfer or sale of the Shares being sold by the Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things required to be done or performed by the Selling Shareholder prior to the Closing Date or any stock purchase agreement Option Closing Date, as the case may be, to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
(iv) Such Selling Shareholder will furnish to you on or prior to the date of this Agreement, a letter in form and substance satisfactory to counsel for the Underwriters, pursuant to which such Selling Shareholder shall agree not to directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of one year from the Effective Date, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder.
(v) Except as stated in this Agreement and in the Preliminary Prospectus and the Prospectus, such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(vi) Such Selling Shareholder will advise you promptly, and if requested by you, will confirm such advice in writing, within the period of time referred to in Section 5(d) hereof, of any Investor.change in the Company's condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow or of any change in information relating to such Selling Shareholder or the Company or any new information relating to the Company or relating to any matter stated in the Prospectus or any amendment or supplement thereto which comes to the attention of such Selling Shareholder that suggests that any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, if amended or supplemented) is or may be untrue in any material respect or that the Registration Statement or Prospectus (as then amended or supplemented, if amended or supplemented) omits or may omit
Appears in 1 contract
Sources: Underwriting Agreement (Intrav Inc)
Additional Covenants. 6.1 The Company covenants and agrees with the Placement Agents thatUnderwriters that it shall:
(a) The file with the TSX and NYSE all required documents and pay all required filing fees, and do all things required by the rules and policies of the TSX and NYSE, as applicable, in order to obtain: (i) prior to filing the Prospectus Supplement, conditional approval from the TSX for the listing of the Offered Shares on the TSX, subject only to Standard Listing Conditions, which the Company will agrees to fully satisfy in a timely transmit manner prior to or as soon as practicable after Closing, as required by the TSX; and (ii) prior to Closing, the requisite acceptance from the NYSE for the listing of the Offered Shares on the NYSE;
(b) with respect to the filing of the Prospectus as contemplated herein, fulfill all legal requirements required to be fulfilled by the Company in connection therewith, in each case in form and substance satisfactory to the Underwriters (acting reasonably) as evidenced by the Underwriters’ execution of the certificates attached thereto;
(c) prior to the completion of the Offering, allow the Underwriters to review the Offering Documents and conduct all due diligence which the Underwriters may reasonably require in order to fulfill their statutory obligations as underwriters and in order to enable the Underwriters to execute, acting prudently and responsibly, the certificates required to be executed by the Underwriters in such documents, including, without limitation, corporate and operating records, documentation with respect to Property Rights, technical information, financial information (including budgets) and access to key officers of the Company;
(d) during the period prior to the completion of the Offering, promptly notify the Underwriters in writing of any material change (actual or proposed) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital of the Company, any change in Applicable Securities Law which reasonably requires the filing of any Supplementary Material, or of any change which is of such a nature as to result in a misrepresentation in the Prospectus or any Prospectus Amendment and:
(i) the Company shall, within any applicable time limitation, comply with all filing and other requirements under the Applicable Securities Laws of the Qualifying Jurisdictions, and with the rules of the TSX and NYSE, applicable to the Company as a result of any such change;
(ii) however, notwithstanding the foregoing, the Company shall not file any Prospectus Amendment or any other material supplementary to the Prospectus (all such Prospectus Amendments and supplementary material being Supplementary Material) without first obtaining the approval of the Underwriters as to the form and content thereof, which approval shall be provided on a timely basis; and, in addition to the foregoing, the Company shall, in good faith, discuss with the Underwriters any material change in circumstances (actual or proposed) which is of such a nature that there is or ought to be consideration given by the Company as to whether notice in writing of such change need be given to the Underwriters pursuant to this subparagraph;
(e) deliver to the Underwriters duly executed copies of any Supplementary Material required to be filed by the Company in accordance with subsection (d) above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional Comfort Letter to that required by subsection (m) below;
(f) deliver to the Underwriters an as-filed electronic copy of the Prospectus as soon as possible after the filing of the Prospectus;
(g) deliver the Prospectus in accordance with the “access equals delivery” provisions contained in Part 6A of NI 44-102 and satisfy any request for electronic or paper copies of the Prospectus in accordance with the requirements of NI 44-102, without charge;
(h) cause commercial copies of the Prospectus, the U.S. Memorandum and Supplementary Material to be delivered to the Underwriters without charge, in such quantities and in such cities as the Underwriters may request, as soon as possible after the filing of the Prospectus Supplement or Supplementary Material, as the case may be, but in any event on or before 9:00 a.m. (Vancouver time) on the business day after the filing thereof, and such delivery will constitute the Company’s consent to the Underwriters’ use of such documents in connection with the Offering;
(i) by the act of having delivered each of the Prospectus and any amendments or supplements thereto, Prospectus Amendments thereto to the SEC for filing pursuant Underwriters, have represented and warranted to Rule 424(bthe Underwriters that all material information and statements (except information and statements relating solely to the Underwriters and provided by the Underwriters to the Company in writing) contained in such documents, at the respective dates of initial delivery thereof, comply with the Applicable Securities Laws of the 1933 Act Rules Qualifying Jurisdictions (and, with respect to the U.S. Memorandum, comply with applicable U.S. Securities Laws), are true and Regulations.correct in all material respects, and that such documents, at such dates, contain no misrepresentation and together constitute full, true and plain disclosure of all material facts relating to the Company, its Subsidiaries, the Offered Shares and the Over-Allotment Option, as required by the Applicable Securities Laws of the Qualifying Jurisdictions;
(bj) The prior to the Closing Time, fulfill to the satisfaction of the Underwriters all legal requirements (including, without limitation, compliance with Applicable Securities Laws) to be fulfilled by the Company has furnished to enable the Offered Shares to be distributed free of resale restrictions in the Qualifying Jurisdictions;
(k) use commercially reasonable efforts to maintain its status as a “reporting issuer” or will the equivalent not in default in each of the Qualifying Jurisdictions for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the purchase of all of the outstanding Common Shares of the Company;
(l) use commercially reasonable efforts to maintain its listing of the Common Shares on the TSX or NYSE (or a similar stock exchange or quotation system) for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the purchase of all of the outstanding common shares of the Company;
(m) deliver to the Placement Agents Underwriters and counsel for its legal counsel, as applicable:
(i) at the Placement Agents, without charge, conformed copies time of execution of the Registration Statement Prospectus by the Underwriter, a long form Comfort Letter (the “Comfort Letter”) from the Company’s auditors addressed to the Underwriters and dated as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement date of the Prospectus Supplement and each amendment thereto furnished based on procedures performed within two business days of the Prospectus Supplement, in form and content acceptable to the Placement Agents will be identical Underwriter, acting reasonably, relating to the electronically transmitted copies thereof filed with verification of the Commission pursuant financial information and accounting data contained in the Prospectus Supplement and to such other matters as the Underwriters may reasonably require;
(ii) at the Closing Time, such legal opinions (the “Legal Opinions”) of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, except the Company’s legal counsel (excluding U.S. legal counsel), and other legal counsel in the Qualifying Jurisdictions addressed to the extent permitted by Regulation S-T or by Rule 424(b) Underwriters and dated as of the 1933 Rules Closing Date, in form and Regulations. The Company will promptly notify content acceptable to the Placement Agents of Underwriters, acting reasonably, relating to the issuance by matters set forth in Schedule “C”;
(iii) at the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order andClosing Time, if any stop order is issuedOffered Shares are being sold in the United States, in accordance with Schedule “A” hereto, a legal opinion of the Company’s U.S. legal counsel (the “U.S. Legal Opinion”) addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) effect that such offer and sale of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which Offered Shares is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered registered under the 1933 Act U.S. Securities Act, it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares;
(iv) at the Closing Time, a certificate (the “Officers’ Certificate”) signed by any Placement Agents or dealerthe Interim Chief Executive Officer and Interim Chief Financial Officer of the Company, addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, certifying for and on behalf of the Company will complyand not in their personal capacities that, at its own expenseto the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry:
(A) the Company has complied, in all material respects, with all requirements imposed by covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the 1933 Act and Closing Time on the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.Closing Date;
(eB) Ifno order, during ruling or determination having the period when a prospectus relating to effect of ceasing or suspending trading in any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion securities of the Company or prohibiting the Placement Agents, 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 sale of the circumstances under which they were made, not misleading Offered Shares or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Company’s issued securities has been issued and no proceeding for such purpose is required pending or, to be delivered under the 1933 Act by any Placement Agents or dealerknowledge of such officers, threatened;
(C) the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale is a “reporting issuer” or its equivalent under the securities or blue sky laws of such jurisdictions as each of the Placement Agents may reasonably designate Qualifying Jurisdictions and will file eligible to use the short form and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that base shelf prospectus system established under NI 44-101 and NI 44-102;
(D) no material change relating to the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which has occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from since the date of this Agreement with respect to which the requisite material change report has not been filed and continuing no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(E) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time in all material respects (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(v) at the Closing Time, such favourable legal opinions in respect of each Material Subsidiary in form and substance satisfactory to the Underwriters acting reasonably, dated as of the Closing Date, with respect to the following matters: (i) the incorporation and existence under the laws of its jurisdiction of incorporation; (ii) as to the authorized and issued share capital and the holders of the issued and outstanding shares; and (iii) the requisite corporate power and capacity under the laws of its jurisdiction of incorporation to carry on its business as presently carried on and to own its properties;
(vi) at the Closing Time, such legal opinions (the “Title Opinions”) of the Company’s legal counsel, addressed to the Underwriters, dated as of the Closing Date, in the form and content acceptable to the Underwriters acting reasonably, with respect to title to and ownership rights in the Silver Sand Project and the Carangas Project;
(vii) at the Closing Time, a certificate signed by the Interim Chief Executive Officer and Interim Chief Financial Officer of the Company, addressed to the Underwriters and dated as of the Closing Date, in form and content acceptable to the Underwriters, acting reasonably, certifying the constating documents of the Company and the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, the authorization of this Agreement, listing on the TSX and NYSE and transactions contemplated by this Agreement;
(viii) at the Closing Time, certificates of good standing (or equivalent) for the Company, the Material Subsidiaries, New Pacific Offshore Inc., New Pacific Investment Corp. Limited, New Pacific Andes Corp. Limited, New Pacific Success Inc., New Pacific Forward Inc., and NPM Minerales S.A., each dated within one business day (or such earlier or later date as the Underwriters may accept) of the Closing Date;
(ix) at the Closing Time, a certificate of the Transfer Agent which certifies the number of Common Shares issued and outstanding as at close of business on the business day immediately prior to the Closing Date;
(x) at the Closing Time, the Comfort Letter, dated the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to the date which is one business day prior to the Closing Date, the information contained in the Comfort Letter;
(xi) at the Closing Time, such other materials (the “Closing Materials”) as the Underwriters may reasonably require and as are customary in a transaction of this nature, which Closing Materials will be addressed to the Underwriters and to such parties as may be reasonably directed by the Underwriters and will be dated as of the Closing Date or such other date as the Underwriters may reasonably require; and
(xii) from and including the date of this Agreement through to and including the date Closing Time, do all such acts and things necessary to ensure that all of the representations and warranties of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warranty of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect;
(n) not to directly or indirectly offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is 30 to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into Common Shares or other equity securities of the Company for a period of 90 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsCo-Lead Underwriters, offer for salesuch consent not to be unreasonably withheld, sell conditioned or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Companydelayed, except for in conjunction with: (i) the Securities; provided, however, that the Company may issue, or grant of stock options to purchase, shares of Common Stock and other similar issuances pursuant to any employee stock the share incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to other share compensation arrangements, provided that the periods covered exercise price thereof shall not be less than the Purchase Price; (ii) the exercise of outstanding stock options, restricted share units and warrants; and (iii) the issuance of securities by the financial statements appearing Company in connection with acquisitions in the Registration Statement and the Prospectus or incorporated therein by reference.normal course of business;
(mo) Except as required deliver lock-up agreements executed by laweach of the Company’s executive officers and directors pursuant to which they agree, prior to the Closing Date, not to directly or indirectly offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into Common Shares or other equity securities of the Company will issue no press release for a period of 90 days after the Closing Date, without the prior written consent of the Co-Lead Underwriters, such consent not to be unreasonably withheld, conditioned or other communicationdelayed, directly or indirectlyexcept in conjunction with: (i) the exercise of outstanding stock options, restricted share units and will hold no press conferences with respect warrants; and (ii) in order to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities accept a bona fide takeover bid made to all securityholders of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.similar business combination transaction;
(p) If prior to the filing of the Prospectus Supplement, provide evidence satisfactory to the Underwriters of the conditional approval of the TSX of the listing and posting for trading on the TSX of the Offered Shares, subject only to satisfaction by the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act customary post-closing conditions imposed by the earlier of TSX in similar circumstances (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2“Standard Listing Conditions”).;
(q) The Company will execute and deliver any stock purchase agreement reasonably requested advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof; of: (i) the issuance by any Investor.Regulatory Authority of any order suspending or preventing the use of the Offering Documen
Appears in 1 contract
Additional Covenants. The Company covenants Company, with respect to itself, and, where expressly indicated, ▇▇▇▇▇▇▇▇ and/or the Selling Shareholders, each with respect to itself, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for the preparation, filing and circulation of a supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Preliminary Prospectus, Prospectus or amendment or supplement thereto by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company further consents to the use of such Prospectus or amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold for other ordinary and customary purposes at the Underwriters' sole risk. The Company will deliver to the Underwriters at or before the Closing Date three signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders and to holders of the Securities, shareholders as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"). The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide file with the Commission such reports on Form SR as may be required pursuant to Rule 463 under the Act.
(j) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been preparedyou promptly, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries subsidiary for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(ml) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release or other communication, releases directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariessubsidiary, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariessubsidiary, or the offering of the SecuritiesShares, without your prior written consentnotice to the Representatives. In The Company and each Selling Shareholder will agree with the event that Underwriters prior to any such disclosure is required by lawother public communication, as to the Company will promptly notify you nature and scope of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to communications and the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationlimitations thereof.
(nm) The Company will use its reasonable best efforts to obtain approval for, for and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap MarketNational Market ("NASDAQ").
(n) For a period of 180 days from the Effective Date, the Company will not, directly or indirectly, sell, contract to sell or otherwise dispose of any shares of Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options under the DTM Corporation Stock Option Plan and the DTM Corporation Equity Appreciation Plan.
(o) For a period of 180 days from the Effective Date, neither ▇▇▇▇▇▇▇▇ nor any other Selling Shareholder will directly or indirectly sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares without your prior written consent, except for the Shares sold hereunder.
(p) The Company and its subsidiaries subsidiary will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariessubsidiary, (iii3) access to the assets of the Company and its subsidiaries subsidiary is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries subsidiary are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need jurisdiction where it is not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is now so qualified or required to be delivered under the 1933 Act by file such a consent or to subject itself to taxation as doing business in any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Actjurisdiction where it is not now so taxed. The Company will furnish will, from time to its security holders annual reports containing financial statements audited by independent public accountants time, file such statements, reports, and quarterly reports containing financial statements and financial information which other documents, as are or may be unaudited.
(i) During required to continue such qualifications in effect for so long a period as the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company Underwriters may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.reasonably
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents thatUnderwriter as follows:
(a) The Company will timely transmit copies of the Prospectus, Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriter as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus, if any, and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriter of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriter if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Underwriter shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriter shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Underwriter after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by the Underwriter or any Placement Agents dealer (or dealerin lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by the Underwriter or any Placement Agents dealer (or dealerin lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriter shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriter, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriter a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Underwriter and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by the Underwriter or any Placement Agents dealer (or dealerin lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriter may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriter at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriter similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriter to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless the Underwriter reasonably requests copies of such documents.
(i) During the For a period beginning of 30 days from the date of this Agreement and continuing to and including the date that is 30 days after the Closing DateAgreement, the Company will not, not without the prior written consent of the Placement AgentsUnderwriter (which may be by electronic mail), offer directly or indirectly (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, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly announce the intention to make any such offer, pledge, sale, sell contract to sell, purchase, grant, transfer, disposition or filing, or (ii) enter into any swap or other agreement to sellor transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Common Stock, whether any such swap, agreement, or otherwise dispose ofother transaction described in (i) or (ii) above is to be settled by delivery of Common Stock, any equity securities other securities, in cash or otherwise, except for (A) Common Stock issued pursuant to this Agreement, (B) Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, except (C) non-managing member units exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that such units referred to any employee stock incentive plan existing in this clause (C) are not exchangeable for Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Common Stock during such one year period), (D) Common Stock issuable upon the exchange of non-managing member units of subsidiaries of the Company outstanding on the date hereofof this Agreement or (E) registration statements filed in connection with future business combination transactions or registration statements on Form S-8 filed to register shares of Common Stock that are issuable pursuant to existing employee benefit plans of the Company.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Underwriter with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date, the Company will furnish to youthe Underwriter, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationUnderwriter.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) The Company will cause each of its directors and executive officers set forth on Annex G hereto to execute and deliver to the Underwriter “lock-up” agreements, each substantially in the form of Annex F hereto.
(q) If at any time during the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on 30-day period after the date of this Agreement, and any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the opinion of the Underwriter the market price of the Shares has been or is likely to be materially affected (ii) regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the time that confirmations are given Prospectus), the Company will, after written notice from the Underwriter advising the Company to the effect set forth above, forthwith consult with the Underwriter concerning the issuance of a press release or sentother public statement, as specified by Rule 462(b)(2)responding to or commenting on such rumor, publication or event.
(qr) The Company will execute use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2012, the Company retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and deliver conducted annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2013 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) Continuing through the Closing Date the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriter and counsel to the Underwriter and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriter with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriter may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date, the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably or pay anyone any compensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(w) If so requested by any Investor.the Underwriter, the Company shall cause to be prepared
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants Company, with respect to itself, and, where expressly indicated, ▇▇▇▇▇▇▇▇ and/or the Selling Shareholders, each with respect to itself, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for the preparation, filing and circulation of a supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company further consents to the use of such Prospectus by the Underwriters and by all dealers to whom the Shares may be sold for other ordinary and customary purposes at the Underwriters' sole risk. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders and to holders of the Securities, shareholders as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"). The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide file with the Commission such reports on Form SR as may be required pursuant to Rule 463 under the Act.
(j) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been preparedyou promptly, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries subsidiary for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(ml) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release or other communication, releases directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariessubsidiary, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariessubsidiary, or the offering of the SecuritiesShares, without your prior written consentnotice to the Representatives. In The Company and each Selling Shareholder will agree with the event that Underwriters prior to any such disclosure is required by lawother public communication, as to the Company will promptly notify you nature and scope of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to communications and the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationlimitations thereof.
(nm) The Company will use its reasonable best efforts to obtain approval for, for and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Stock Market's National Market ("NASDAQ").
(n) For a period of 180 days from the Effective Date, the Company will not, directly or indirectly, sell, contract to sell or otherwise dispose of any shares of Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options under the DTM Corporation Stock Option Plan and the DTM Corporation Equity Appreciation Plan.
(o) For a period of 180 days from the Effective Date, neither ▇▇▇▇▇▇▇▇ nor any other Selling Shareholder will directly or indirectly sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares without your prior written consent, except for the Shares sold hereunder.
(p) The Company and its subsidiaries subsidiary will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariessubsidiary, (iii3) access to the assets of the Company and its subsidiaries subsidiary is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries subsidiary are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants Inergy Parties covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering, issuance or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Closing Date, furnish or make available to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(i) During the The Inergy Parties will not, for a period beginning of 180 days from the date of this Agreement and continuing the Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to and including sell 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 Units or units of the MLP held by them or securities convertible into, or exchangeable for Common Units or units of the MLP held by them, or sell or grant options, rights or warrants with respect to any Common Units or units of the MLP held by them or securities convertible into or exchangeable for Common Units or units of the MLP held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units or units of the MLP, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or units of the MLP held by them or other securities, in cash or otherwise, in each case without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.; provided, however, that the foregoing restrictions do not apply to issuances pursuant to employee benefit plans as in existence as of the date of the Prospectus. In the event that (i) during the last 17 days of the 180-day period described in the preceding sentence, the Partnership issues an earnings release or announces a material news or a material event or (ii) prior to the expiration of such 180-day period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions described in the preceding sentence will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event. Each executive officer and director of the Partnership and each executive officer and director of the MLP shall furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is 30 designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 180 days after from the Closing Date, date of the Company will notProspectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.▇▇▇▇▇▇ Brothers Inc.
(j) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(k) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pm) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qn) The Company It is understood that up to ________ of the Firm Units (the “Directed Units”) will execute initially be reserved by the Underwriters for offer and deliver sale to officers, directors, employees and persons having business relations with the Inergy Entities (“Directed Unit Participants”) upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. (the “Directed Unit Program”). Under no circumstances will ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. or any stock Underwriter be liable to the Inergy Entities or to any Directed Unit Participant for any action take or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase agreement reasonably requested by any InvestorDirected Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the public offering contemplated hereby.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act or the Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Prospectus, as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits, financial statements and schedules filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law (including, without limitation, the Act and Rule 158 of the 1933 Act Rules and Regulations), the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders stockholders and will file as an exhibit in a report pursuant to holders the Securities and Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its stockholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no or have issued on its behalf any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you consent of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationEdwards.
(nl) The Company will use its reasonable best efforts to obtain approval ap▇▇▇▇▇▇ for, and maintain the quotation of the Shares on, the National Association of Securities Dealers, Inc. Automated Quotation/National Market System (the "NASDAQ/NMS"). The Shares have been approved for listing on the NASDAQ/NMS, subject to notice of issuance under the symbol "AMPZ."
(m) For a period of 180 days from the Effective Date, the Company will not, and will use its best efforts to cause its directors, officers, 5% stockholders and each owner of the Investor Warrant Acquired Practices to not, directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without the prior written consent of Edwards, except for the Shares sold hereunder and except for sales of ▇▇▇▇▇▇ of Common Stock to the Company's employees pursuant to the exercise of options under the Company's 1997 Incentive and Non-Qualified Stock Option Plan as in effect on The Nasdaq SmallCap Marketthe Effective Date.
(on) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (American Medical Providers Inc)
Additional Covenants. (a) The Company Partnership covenants and agrees with the Placement Agents Underwriters that:
(ai) The Company Partnership will timely transmit copies of the Preliminary Prospectus and the Final Prospectus, and any amendments or supplements thereto, to the SEC Commission for filing pursuant to Rule 424(b) of the 1933 Securities Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver or make available to the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, and of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Final Prospectus as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; if there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Basic Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Final Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering, issuance or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Securities Act Rules and Regulations that differs from the Final Prospectus as filed pursuant to such Rule 424(b) or any Issuer Free Writing Prospectus)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus becomes effective or when any supplement to the Basic Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Securities Act by any Placement Agents Underwriters or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Securities Act and the 1933 Securities Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Securities Act by any Placement Agents Underwriters or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Final Prospectus or any Issuer Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Final Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Securities Act, the 1933 Securities Act Rules and Regulations, the 1934 Exchange Act or the 1934 Exchange Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECCommission, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Securities Act by any Placement Agents Underwriters or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky “Blue Sky” laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Securities Act and Rule 158 of the 1933 Securities Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the Securities Act or the Exchange Act, unless they are otherwise available on the Commission’s ▇▇▇▇▇ System. Any report, document or other information required to be furnished under this paragraph (viii) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(iix) During the The Inergy Parties will not, for a period beginning of 45 days from the date of the Final Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to sell 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 Units held by them or securities convertible into, or exchangeable for Common Units held by them, or sell or grant options, rights or warrants with respect to any Common Units held by them or securities convertible into or exchangeable for Common Units held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units held by them or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units (other than (1) any registration statement on Form S-8 or (2) as otherwise excepted from this Agreement lock-up provision) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of UBS Securities LLC; provided, however, that the foregoing restrictions do not apply to (a) issuances of Common Units pursuant to any existing employee benefit plans or (b) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and continuing capital improvements that the Managing General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance; and including each executive officer and director of the Partnership shall furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 60 days from the date that is 30 days after of the Closing Date, the Company will notFinal Prospectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the SecuritiesUBS Securities LLC; provided, however, however that the Company may issue, or grant options executive officers and directors of the Partnership shall be permitted to purchase, shares of sell up to 50,000 Common Stock pursuant to any employee stock incentive plan existing on Units in the date hereofaggregate during this period for tax planning purposes.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusSecurities Act.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNASDAQ.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Underwriters, it has not made and its subsidiaries will maintain not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership agrees that each Issuer Free Writing Prospectus has complied and keep accurate books will comply, as the case may be, with the requirements of Rules 164 and records reflecting their assets 433 of the Securities Act Rules and maintain internal accounting controls Regulations applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xiv) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) transactions are executed in accordance with management’s authorization, notify promptly the Underwriters so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission; and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of the Company and its subsidiaries is permitted only you in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalssuch quantities as you may reasonably request.
(pb) If The several Underwriters covenant and agree with the Company elects to rely on Rule 462(b) under Partnership that: Each Underwriter, severally and not jointly, agrees with the 1933 ActPartnership that, unless it has obtained or will obtain, as the case may be, the Company shall both file prior written consent of the Partnership, it has not made and will not make any offer relating to the Securities that would constitute an Abbreviated Registration Statement Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the SEC in compliance with Commission or retained by the Partnership under Rule 462(b) and pay the applicable fees in accordance with Rule 111 433; provided, however, that prior written consent of the 1933 Act by parties hereto shall be deemed to have been given in respect of the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)free writing prospectuses included in Schedule II hereto.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Inergy L P)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies Borrower agrees, on its own behalf and on behalf of each Grantor, to notify the Administrative Agent in writing of any change (i) in legal name of any Grantor, (ii) in the identity or type of organization or corporate structure of any Grantor, (iii) in the jurisdiction of organization of any Grantor, or (iv) in the chief executive office of any Grantor, within 15 days of any such change. Such Grantor shall take all actions necessary to maintain the continuous validity, perfection and the same priority of the Prospectus, and any amendments Administrative Agent’s security interest in the Collateral granted or supplements thereto, intended to be granted under the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and RegulationsLoan Agreements.
(b) The Company has furnished or will deliver Each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to defend title to the Placement Agents Collateral against all Persons and counsel for to defend the Placement Agents, without charge, conformed copies security interest of the Registration Statement as originally filed Administrative Agent in the Collateral and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies priority thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent against any Lien not expressly permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible momentCredit Agreement.
(c) The Company will not file any amendment or supplement to the Registration StatementBorrower agrees, the Prospectus (or any on its own behalf and on behalf of each other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will complyGrantor, at its own expense, with to execute, acknowledge, deliver and cause to be duly filed all requirements imposed by such further instruments and documents and take all such actions as the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as Administrative Agent may from time to time reasonably request to better assure, preserve, protect and perfect its security interest and the rights and remedies created hereby (subject to the limitations herein), including the payment of any fees and taxes required in forceconnection with the execution and delivery of this Agreement, the granting to the Administrative Agent of a security interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith. If any amount payable under or in connection with any of the Collateral that is in excess of $2,500,000 (or in excess of $5,000,000 for all amounts) shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be promptly pledged and delivered to the Administrative Agent, for the benefit of the Secured Parties, duly endorsed in a manner reasonably satisfactory to the Administrative Agent.
(d) After an Event of Default has occurred or is continuing, at its option, the Administrative Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral, and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so far as necessary required by the Credit Agreement or this Agreement and within a reasonable period of time after the Administrative Agent has requested that it do so, and each Grantor jointly and severally agrees to permit reimburse the continuance Administrative Agent within 10 days after demand for any payment made or any reasonable expense incurred by the Administrative Agent pursuant to the foregoing authorization. Nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Administrative Agent or any Secured Party to cure or perform, any covenants or other promises of sales of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or dealing other encumbrances and maintenance as set forth herein, in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectusother Loan Documents.
(e) If, during the period when If at any time any Grantor shall take a prospectus relating security interest in any property of any Person who is or who may become obligated to any Grantor under, with respect to or on account of an Account (an “Account Debtor”), or any other Person, the value of which is in excess of $2,500,000 (or in excess of $5,000,000 in the aggregate for all property in which Grantors take a security interest in the manner contemplated by this clause (e)), to secure payment and performance of an Account, such Grantor shall promptly assign such security interest to the Administrative Agent for the benefit of the Securities is required Secured Parties. Such assignment need not be filed of public record unless necessary to be delivered under continue the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion perfected status of the Company or security interest against creditors of and transferees from the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement Account Debtor or other filing that will correct such statement or omission or effect such compliancePerson granting the security interest.
(f) During Each Grantor (rather than the period when a prospectus Administrative Agent or any Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the material conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the Secured Parties from and against any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish and all liability for such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsperformance; provided, howeverthat no Grantor shall have any obligation hereunder to the Administrative Agent or such Secured Party with respect to any such liabilities to the extent such liabilities are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence, that bad faith or willful misconduct of the Company shall not be required to qualify as a foreign corporation Administrative Agent or shall be required to qualify as a dealer in securities such Secured Party or to file a general consent to service of process under the laws of any jurisdictiondirector, officer, or employee of the Administrative Agent or such Secured Party.
(g) In accordance If any Grantor shall at any time hold or acquire a Commercial Tort Claim with Section 11(a) a value in excess of $2,500,000 (or the Grantors collectively hold or acquire Commercial Tort Claims in the aggregate exceeding $5,000,000 at any time), such Grantor shall promptly notify the Administrative Agent in writing signed by such Grantor of the 1933 Act brief details thereof and Rule 158 grant to the Administrative Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement pursuant to a document in form and substance reasonably satisfactory to the 1933 Act Rules and RegulationsAdministrative Agent.
(h) If the aggregate amount of all Letter-of-Credit Rights held by all Grantors exceeds $10,000,000, the Company will make generally available Borrower shall promptly notify the Administrative Agent in writing and the Grantors shall take such actions to its security holders and to holders of establish the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date Administrative Agent’s “control” (within the meaning of Rule 158) Section 9-107 of the Registration Statement.
(h) During the period when a prospectus relating to any Uniform Commercial Code of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerrelevant jurisdiction) over such Letter-of Credit Rights, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a)a document in form and substance reasonably satisfactory to the Administrative Agent, 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which as may be unauditedreasonably requested by the Administrative Agent at its option.
(i) During If the period beginning from the date aggregate book value of this Agreement and continuing to and including the date that is 30 days after the Closing Dateall Vehicles owned by all such Grantors exceeds $10,000,000, the Company will not, without Borrower shall promptly notify the prior written consent Administrative Agent in writing and the Grantors shall take such actions in respect of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities perfection of the Company, except for the Securities; provided, however, that the Company Administrative Agent’s security interest in such Vehicles as may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement be reasonably requested by any Investorthe Administrative Agent (it being understood that having the Administrative Agent’s name added to the title of such vehicles in the relevant jurisdictions shall be deemed to be reasonable).
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Six Flags Entertainment Corp)
Additional Covenants. The Company covenants and agrees with the Placement Agents Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, Underwriters (i) one signed and two conformed copies of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Securities for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securitiesholders, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, so long as any Securities are outstanding, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsUnderwriters, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity debt securities of the Company, except for other than the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(k) The Company will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to youthe Underwriters, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or Company, any of its subsidiariessubsidiaries or CN, the financial condition, results of operations, business, properties, assets or liabilities of the Company or Company, any of its subsidiariessubsidiaries or CN, or the offering of the Securities, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationUnderwriters.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of listing of, the Shares and Securities on the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(o) The Company and Company, its subsidiaries and CN will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company Company, its subsidiaries and its subsidiariesCN, (iii) access to the assets of the Company and Company, its subsidiaries and CN is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and Company, its subsidiaries and CN are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents thatSeller shall:
(a1) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, enter into an amendment to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel each Newco Employee's existing option agreements which provide for the Placement Agents, without charge, conformed copies purchase of the Registration Statement as originally filed and equity securities of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed Seller to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations provide that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur no such options will terminate as a result of whichthe Newco Employee's continued employment with Newco following the Closing, in the opinion of the Company or the Placement Agents, 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, not misleading or and (ii) it any unvested options held by such Newco Employee shall be necessary to amend vest on the earlier of (x) one year anniversary date of the Closing Date (the "ANNIVERSARY DATE") if such Newco Employee does not terminate his or supplement the Registration Statement her employment with Newco or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act an affiliate or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish successor of Newco on or prior to the Placement Agents a reasonable number Anniversary Date, or (y) the date on which such Newco Employee ceases to be an employee of copies ofNewco, or an affiliate or successor of Newco, by reason of such amendment Newco Employee's employment being terminated by Newco or supplement an affiliate or successor of Newco for any reason other filing that will correct such statement or omission or effect such compliance.than Cause; and
(f2) During the period when pay to each such Newco Employee, within thirty days following December 31, 1999, a prospectus relating "stay in place bonus" in an amount equal to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws 25% of such jurisdictions as Newco Employee's annual base salary, excluding bonus and commissions, if any, prior to the Placement Agents may reasonably designate Closing if such Newco Employee is continuously employed by Newco, or an affiliate or successor of Newco, between the Closing and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsDecember 31, 1999; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.and
(g3) In accordance with Section 11(a) of on the 1933 Act and Rule 158 of the 1933 Act Rules and RegulationsClosing Date, the Company will make generally available to its security holders and to holders of the Securities, or as soon as practicablepracticable thereafter, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerpay each Newco Employee all accrued wage, the Company will file promptly salary, bonus and commission for all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing periods prior to and including the date that Closing Date to which such person is 30 entitled; and EXHIBIT 2.2
(4) pay or provide for all other employee benefits maintained by Seller for all periods prior to and including the Closing Date, all in accordance with applicable law; and
(5) as soon as possible after the Closing Date, but in no event later than thirty (30) days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement deliver to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with Newco copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior amendments to the Closing Date, employment agreements between Seller and the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent Newco Employees which evidence certain modifications to the periods covered by the financial statements appearing in the Registration Statement employment agreements between Seller and the Prospectus or incorporated therein by reference.
Newco Employees (m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any former employees of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2Seller).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees the Operating Partnership, jointly and severally, covenant and agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives upon request, and to counsel for the Placement Agents, without charge, Underwriters (i) a conformed copies copy of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and (ii) a conformed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, Shares of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any such amendment to the Registration Statement becomes effective or when any such supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and Act, the 1933 Act Rules and Regulations, as now the 1934 Act and hereafter amended, the 1934 Act Rules and by the rules and regulations of the SEC thereunder, as from time to time in forceRegulations, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file (subject to Section 5(c)) with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or 1934 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or the 1934 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kj) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which during the Company files with the SEC at period when a prospectus relating to any time until the expiration of one year from the date of the ProspectusShares is required to be delivered under the 1933 Act or the 1934 Act by any Underwriter or dealer.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of not issue any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company which consent will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationnot be unreasonably withheld.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(om) The Company will not, directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any Series C Shares or shares of beneficial interest ranking on a parity with or senior to the Series C Shares (“Parity Shares”), any securities convertible into, or exercisable or exchangeable for, Series C Shares or Parity Shares or any other rights to acquire Series C Shares or Parity Shares, for a period of 30 days from the date of the Prospectus Supplement, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. and Wachovia Capital Markets, LLC, except for the Shares sold hereunder.
(n) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed sufficient to meet the broad objectives of internal accounting controls insofar as those would be material in accordance with management’s authorization, (ii) transactions are recorded as necessary relation to permit the preparation of the Company’s consolidated financial statements or the Company’s compliance with its obligations under the 1933 Act, 1933 Rules and to maintain accountability for the assets of the Company Regulations, 1934 Act and its subsidiaries, (iii) access to the assets of the Company 1934 Act Rules and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsRegulations.
(po) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York, New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance in all material respects with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it has received notice or obtained knowledge thereof, of any comments of the Securities is required Commission with respect to be delivered under the 1933 Act Registration Statement, of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any Placement Agents stop order suspending the effectiveness of the Registration Statement or dealerthe use of the Prospectus or of the institution or threat of any proceedings for that purpose, and the Company will complyuse its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, at its own expenseif issued.
(c) The Company will cooperate with the Underwriters and their counsel in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of) the securities laws of such jurisdictions as they may have designated and will make such applications, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amendedfile such documents, and by the rules and regulations of the SEC thereunder, furnish such information as from time to time in force, may be reasonably necessary so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and dealings therein for so long as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall may be necessary to amend or supplement complete the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any distribution of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerShares, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need jurisdiction where it is not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Actnow so qualified. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent advise you promptly of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities suspension of the Company, except for the Securities; provided, however, that the Company may issue, qualification or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.such
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed Underwriters (i) three signed copies of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act and certificates the 1933 Act Rules and Regulations; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations Regulations) that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 1934 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; providedPROVIDED, howeverHOWEVER, that the Company shall not be required to qualify as a foreign corporation or shall not be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, So long as the Company will file promptly all documents required is subject to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) reporting requirements of the 1934 Act. The , the Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 90 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that Shares and issuances of shares and options under the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee Company's stock incentive plan existing on the date hereofoption plan.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariesCompany, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesCompany, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation inclusion of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(o) The Company will cause its directors and its subsidiaries officers to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, and the Company will not, directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 90 days from the Effective Date, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder, except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options under the Company's stock option plan and except for sales of shares in accordance with the Company's effective Registration Statement on Form S-3 (Registration No. 333-57786).
(p) The Company will maintain and keep accurate books and records reflecting their its assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariesCompany, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pq) During any period in which a prospectus is required by law to be delivered by an Underwriter or dealer, the Company will promptly file all documents required to be filed with the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act.
(r) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qs) The Company Each of the Selling Shareholders severally agrees with the several Underwriters as follows:
(i) Such Selling Shareholder will execute cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all Federal and deliver other taxes, if any, on the transfer or sale of the Shares being sold by the Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things required to be done or performed by the Selling Shareholder prior to the Closing Date to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
(iv) For a period of 90 days from the Effective Date, the Selling Shareholders will not directly or indirectly offer for sale, contract to sell, sell, distribute, grant any stock purchase agreement option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or rights to acquire such shares, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder by the Selling Shareholders.
(v) Except as stated in this Agreement and in the Preliminary Prospectus and the Prospectus, such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably requested by any Investorbe expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees the Operating Partnership, jointly and severally, covenant and agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents you upon request, and to counsel for the Placement AgentsUnderwriters, without charge, (i) a conformed copies copy of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and (ii) a conformed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through you as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as you may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise you of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, Shares of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act and the 1934 Act Rules and Regulations, as applicable; and the Company will promptly notify you after it shall have received notice thereof of the time when any such amendment to the Registration Statement becomes effective or when any such supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and Act, the 1933 Act Rules and Regulations, as now the 1934 Act and hereafter amended, the 1934 Act Rules and by the rules and regulations of the SEC thereunder, as from time to time in forceRegulations, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or 1934 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents you shall occur as a result of which, in the opinion of the Company or the Placement Agentsyou, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file (subject to Section 5(c)) with the SEC, and furnish to the Placement Agents you a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or 1934 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents you may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdictionjurisdiction in which it is not already so qualified or otherwise so subject.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or the 1934 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kj) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which during the Company files with the SEC at period when a prospectus relating to any time until the expiration of one year from the date of the ProspectusShares is required to be delivered under the 1933 Act or the 1934 Act by any Underwriter or dealer.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of not issue any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company which consent will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationnot be unreasonably withheld.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(om) Except for the Shares sold hereunder, for a period of 30 days after the date of the Prospectus, the Company will not directly or indirectly, (i) offer, pledge, sell, or contract to sell any Common Shares, (ii) sell any option or contract to sell any Common Shares, (iii) purchase any option or contract to sell any Common Shares, (iv) grant any option, right or warrant to purchase any Common Shares, (v) enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Common Shares, whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, (vi) take any of the foregoing actions with respect to any securities convertible into or exchangeable, redeemable or exercisable for or repayable with Common Shares, (vii) file with the Commission a registration statement under the 1933 Act relating to any additional Common Shares or securities convertible into or exchangeable, redeemable or exercisable for Common Shares, or (viii) publicly disclose the intention to take any of the foregoing actions, without the prior written consent of the Underwriter; provided, however, that the Company and the Operating Partnership shall not be restricted from issuing Common Shares or options, warrants, partnership interests or other securities convertible into or redeemable for Common Shares (i) in connection with acquisitions, joint ventures and similar arrangements, (ii) upon the exercise of outstanding employee share options and options pursuant to employee benefit plans, (iii) pursuant to non-employee trustee share plans, (iv) pursuant to any dividend reinvestment plan of the Company, (v) pursuant to employee benefit plans in the ordinary course of business, and (vi) upon conversion or redemption of any currently outstanding convertible securities, including partnership units.
(n) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed sufficient to meet the broad objectives of internal accounting controls insofar as those would be material in accordance with management’s authorization, (ii) transactions are recorded as necessary relation to permit the preparation of the Company’s consolidated financial statements or the Company’s compliance with its obligations under the 1933 Act, 1933 Rules and to maintain accountability for the assets of the Company Regulations, 1934 Act and its subsidiaries, (iii) access to the assets of the Company 1934 Act Rules and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsRegulations.
(po) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York, New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents you that:
(a) The Company will timely transmit copies of (i) prepare a Prospectus Supplement relating to the Shares, setting forth their terms not otherwise specified in the Prospectus, the name of the Underwriter, the price at which the Shares are to be purchased by the Underwriter from the Company and any amendments or supplements theretosuch other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares, to and file the SEC for filing Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no later than the Commission's close of business on the second business day following the date of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies determination of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies offering price of the Registration Statement Shares; (ii) not file (and each the Operating Partnership will not so file) any amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents you shall not previously have been advised and furnished with a copy or to which the Placement Agents you shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will and
(iii) promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the The Company or the Placement AgentsOperating Partnership, as the case may be, will advise you promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus as then amended or supplemented would include for any untrue statement of a material fact additional information, 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, not misleading or (ii) it shall be necessary to amend or supplement issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company and the Operating Partnership will forthwith at its expense prepare use their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with you and otherwise cooperate your counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents you may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdictionjurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to you, without charge as many copies of the 1933 Act and Rule 158 Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as you may from time to time reasonably request. The Company consents to the use of such Prospectus by you, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to you at or before the Closing Date two conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith or incorporated by reference therein and all documents incorporated by reference in the Prospectus and will deliver to you such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of your counsel, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any applicable law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with such law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders of the SecuritiesExchange Act, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jg) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kh) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(li) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mj) Except as required by law, prior Prior to the Closing Date, the Company will issue no notify you in advance of any press release conferences, releases or other communicationcommunications, directly to be held or indirectlyissued by the Company, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationShares.
(nk) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(ol) The Company and its subsidiaries the Operating Partnership will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company Company, the Operating Partnership and its subsidiariesthe Subsidiaries, (iii3) access to the assets of the Company Company, the Operating Partnership and its subsidiaries the Subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company Company, the Operating Partnership and its subsidiaries the Subsidiaries are compared with existing assets at reasonable intervals.
(pm) If the Company elects During any period in which a prospectus is required by law to rely on Rule 462(b) under the 1933 Actbe delivered by an Underwriter or dealer, the Company shall both will promptly file an Abbreviated Registration Statement all documents required to be filed with the SEC in compliance with Rule 462(bCommission pursuant to Sections 13, 14 or 15(d) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Exchange Act.
(qn) The Company will execute continue to elect to qualify as a "real estate investment trust" under the Code, and deliver any stock purchase agreement reasonably requested by any Investorwill use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust."
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with (a) At the Placement Agents thatClosing, the Seller shall deliver, or cause to be delivered, the following:
(ai) The Company will timely transmit copies a certificate of an officer of the ProspectusSeller certifying that (A) the representations and warranties of the Seller are true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such date, except for any changes permitted by the terms hereof or consented to in writing by Purchaser, (B) the Seller has performed and any amendments complied in all material respects with all terms, conditions, covenants, obligations, agreements and restrictions required by this Agreement to be performed or supplements theretocomplied with by the Seller prior to or at the Closing Date and (C) as of the Closing Date there has been no event, change or circumstance that has resulted in a Material Adverse Effect since the date hereof;
(ii) a certificate of the Secretary of the Seller attesting to the SEC for filing pursuant to Rule 424(b) incumbency of the 1933 Act Rules Seller's officers, the authenticity of the resolutions authorizing the transactions contemplated by this Agreement and Regulationsthe authenticity and continuing validity of the Seller's certificate of incorporation and by-laws;
(iii) a certificate of the Secretary of State of Delaware as to the legal existence and good standing of the Seller in the State of Delaware;
(iv) trademark assignments, in the form of Exhibit E attached hereto, --------- with respect to the trademarks set forth on Exhibit B, executed by the --------- Seller;
(v) a ▇▇▇▇ of sale, in form and substance reasonably accepted to Purchaser, with respect to the Assets executed by the Seller;
(vi) an assignment and assumption agreement, in form and substance reasonably acceptable to Purchaser, with respect to the Assumed Liabilities executed by the Seller;
(vii) InterNIC Registrant Name Change Agreement forms for each of the Domain Names set forth in Exhibit I in form and substance reasonably --------- acceptable to Purchaser signed by the Seller;
(ix) office email and telephone information of each Employee.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating from the date hereof to any the Closing Date, except as expressly permitted or contemplated by this Agreement and other than in respect of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerExcluded Assets, the Company will comply, at Seller shall conduct its own expense, operations with respect to the Assets in all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing material respects in the Securities during such period in accordance ordinary course of business consistent with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionspast practices; provided, however, that the Company Seller shall not change -------- ------- the passwords with respect to the Web Sites and their underlying servers and editorial interfaces pursuant to Purchaser's instructions on the date hereof;
(c) In the event Purchaser's payments under the ▇▇▇▇▇▇.▇▇▇ earn-out obligations exceed $200,000.00 in any single year, the Seller shall purchase advertising on Purchaser's network of Web sites and related Internet media properties, on Purchaser's standard terms and conditions, in an amount equal to such excess payments over a period of 12 months from the date the relevant earnout is paid;
(d) Seller shall use commercially reasonable efforts to preserve and keep the records held by the Seller relating to the Assets and shall make such records available to Purchaser to the extent (i) required to complete the financial audit of Purchaser with respect to the year ended December 31, 2000 and (ii) for such period of time as may be required by law, it being understood that Purchaser shall reimburse the Seller for all out of pocket expenses incurred with such access and any expenses with respect to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service Purchaser's financial audit are the obligations of process under the laws of any jurisdiction.Purchaser;
(ge) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and RegulationsUpon request, the Company will make generally available Seller shall complete one mailing in a timely manner to its security holders and the Employees with respect to holders Purchaser's offer of employment pursuant to the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day terms of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.this Agreement; and
(hf) During At the period when a prospectus relating to any of the Securities is required Closing, Purchaser shall deliver, or cause to be delivered under the 1933 Act by any Placement Agents or dealerdelivered, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.following:
(i) During a certificate of an officer of Purchaser certifying that (A) the period beginning from representations and warranties of Purchaser are true and correct in all material respects on and as of the date Closing Date as through such representations and warranties were made on and as of such date, except for any changes permitted by the terms hereof or consented to in writing by the Seller and (B) Purchaser has performed and complied in all material respects with all terms, conditions, covenants, obligations, agreements and restrictions required by this Agreement and continuing to and including the date that is 30 days after be performed or complied with by Purchaser prior to or at the Closing Date, the Company will not, without the prior written consent ;
(ii) a certificate of the Placement AgentsSecretary of Purchaser attesting to the incumbency of Purchaser's officers, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities and the authenticity and continuing validity of Purchaser's certificate of incorporation and by-laws;
(iii) a certificate of the Company, except for Secretary of State of Delaware as to the Securitieslegal existence and good standing of Purchaser in the State of Delaware; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.and
(jiv) The Company will apply the proceeds from the sale of the Securities as set forth an assignment and assumption agreement, in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to form and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior substance reasonably acceptable to the Closing DateSeller, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required Assumed Liabilities executed by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationPurchaser.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify ▇▇▇▇, as one of any stop order andthe Representatives, promptly after it shall receive notice thereof, of the time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance in all material respects with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you ▇▇▇▇ after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it has received notice or obtained knowledge thereof, of any comments of the Securities is required Commission with respect to be delivered under the 1933 Act Registration Statement, of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any Placement Agents stop order suspending the effectiveness of the Registration Statement or dealerthe use of the Prospectus or of the institution or threat of any proceedings for that purpose, and the Company will complyuse its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, at its own expenseif issued.
(c) The Company will cooperate with the Underwriters and their counsel in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of) the securities laws of such jurisdictions as they may have designated and will make such applications, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amendedfile such documents, and by the rules and regulations of the SEC thereunder, furnish such information as from time to time in force, may be reasonably necessary so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and dealings therein for so long as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall may be necessary to amend or supplement complete the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any distribution of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerShares, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified. The Company will advise ▇▇▇▇ promptly of the laws suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any jurisdictionproceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(gd) In accordance with Section 11(aThe Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus (including all documents incorporated by reference therein) as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. The Company will deliver to ▇▇▇▇ at or before the First Time of Delivery two signed copies of the Registration Statement and all amendments thereto, including all exhibits filed therewith or incorporated by reference therein, and all documents incorporated by reference in the Prospectus, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the reasonable judgment of the Company or in your reasonable judgment or in the written opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law.
(f) The Company will make generally available to its security holders and to holders of the Securitiesshareholders, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date of the Registration Statement (within the meaning "Effective Date"), an earnings statement in reasonable detail, covering a period of Rule 158) at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Effective Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or national securities market pursuant to the requirements of such exchange or market or with the Commission pursuant to the Act or the Securities Exchange Act of 1934 (the "1934 Act"). Any report, document or other information required to be furnished under this subsection (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “the caption "Use of Proceeds” " in the Prospectus. Without limiting the generality of the foregoing, which description complies none of the net proceeds of the public offering (through the repayment of debt or otherwise) will be paid, in all respects with the requirements aggregate, to NASD members, affiliates, associated persons, or related persons. The Company will promptly advise ▇▇▇▇, and provide full particulars, if any 5% or greater shareholder of Item 504 the Company is or becomes an affiliate or associated person of Regulation S-K.an NASD member participating in the public offering. Under no circumstances will ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated, GunnAllen Financial, Inc., or AM ▇▇▇▇ & Company participate in the public offering in any capacity.
(ki) The Company will promptly provide you supply ▇▇▇▇ with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Dateeach Time of Delivery, the Company will furnish to you▇▇▇▇, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing Date30th day after the last Time of Delivery, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariesCompany, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesCompany, or the offering of the SecuritiesShares, without your ▇▇▇▇'▇ prior written consent. In the event that any such disclosure is consent except as otherwise required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NASDNMS.
(m) For a period of 180 days from the Effective Date, the Company will not, and will cause its directors, officers and pre-Effective Date securityholders (including, without limitation, holders of options, warrants or other rights to acquire securities of the Investor Warrant Company) to not (i) offer, pledge, sell, hypothecate, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or (ii) enter into any hedge, 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 be settled by delivery of Common Stock or such other securities, in cash or otherwise, without ▇▇▇▇'▇ prior written consent, except for the Shares sold hereunder and except for sales by the Company of shares of Common Stock to the Company's employees pursuant to the exercise of options under the Company's stock option plan as described in the Prospectus. The foregoing sentence shall not apply to the sale of any Shares to the Underwriters pursuant to this Agreement.
(n) The Company will file with the Commission such information on The Nasdaq SmallCap MarketForm 10-Q or Form 10-K as may be required by Rule 463 under the Act.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their its assets and will maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariesCompany, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If Prior to the Company elects to rely on Rule 462(b) under the 1933 ActClosing Date, the Company shall both file an Abbreviated Registration Statement have issued to the transfer agent for the Common Stock (the "Transfer Agent") a "stop transfer" instruction with respect to all the SEC in compliance with Rule 462(b) shares of Common Stock issued and pay outstanding immediately prior to the applicable fees in accordance with Rule 111 Effective Date (the "Pre-offering Shares"), instructing the Transfer Agent to not honor any requests to transfer any Pre-offering Shares prior to the expiration of the 1933 Act by the earlier of (i180-day period described in Section 5(m) 9:00 p.m., St. Louis time, on the date of this AgreementAgreement without the ▇▇▇▇'▇ prior written consent, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)such stop transfer instruction shall be in full force and effect at each Time of Delivery.
(q) The Company will execute make available its stock transfer records to the Representatives upon the ▇▇▇▇'▇ request during the 12-month period following the Effective Date.
(r) The Company will not, without the prior written consent of ▇▇▇▇, directly or indirectly grant any options, warrants or rights to purchase or acquire Common Stock for a price below the market price for the Common Stock on the date of grant, for a period of 180 days commencing on the Effective Date.
(s) The Company shall have become listed, within twenty days after the Effective Date, and deliver any stock purchase agreement reasonably requested by any Investorshall use its best efforts to maintain such listing, for at least five years after the Effective Date in Standard and Poor's Corporation Records Service and/or ▇▇▇▇▇'▇ OTC Guide.
Appears in 1 contract
Additional Covenants. (a) The Company covenants Suburban Parties jointly and agrees severally covenant and agree with the Placement Agents several Underwriters that:
(ai) The Company Partnership will timely transmit copies of the ProspectusPreliminary Prospectus and the Final Prospectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC Commission for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, and of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Final Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Preliminary Prospectus or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Final Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement the Final Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or Issuer Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations Regulations) that differs from the Final Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or Issuer Free Writing Prospectus becomes effective or when any supplement to the Basic Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership Entities or of which the Company Partnership shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Final Prospectus or any Issuer Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Final Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECCommission, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which that may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriters via the Commission’s Interactive Data Electronic Applications (IDEA) system or the Partnership’s website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements. The Representatives will be directed to access the IDEA system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Partnership of such reports to the Representatives in compliance with the provisions of this Section 5(a)(viii). The Representatives shall have no duty to search for or obtain any electronic or other filings that the Partnership makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.
(iix) During the The Suburban Parties will not, for a period beginning of 60 days from the date of the Final Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to sell 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 Units held by them or securities convertible into, or exchangeable for Common Units held by them, or sell or grant options, rights or warrants with respect to any Common Units held by them or securities convertible into or exchangeable for Common Units held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units held by them or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units (other than (1) any registration statement on Form S-8 or (2) as otherwise excepted from this Agreement lock-up provision) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives; provided, however, that the foregoing restrictions do not apply to (1) issuances of Common Units pursuant to any existing employee benefit plans, or (2) pursuant to the Underwriters’ option to purchase the Option Units; and continuing the executive officers and Supervisors of the Partnership shall furnish to and including the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 60 days from the date that is 30 days after of the Closing Date, the Company will notFinal Prospectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofRepresentatives.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNYSE.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, it has not made and its subsidiaries will maintain not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and keep accurate books any electronic road show. The Partnership agrees that (x) it has treated and records reflecting their assets will treat, as the case may be, each Issuer Free Writing Prospectus as an Issuer Free Writing Prospectus and maintain internal accounting controls (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xiv) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in light of the circumstances under which they were made at such time not misleading, the Partnership will (i) transactions are executed in accordance with management’s authorization, notify the Representatives promptly so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of Representatives in such quantities as the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsRepresentatives may reasonably request.
(pxv) If the Company Partnership elects to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, Agreement and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company Each of the Underwriters, severally but not jointly, covenant and agree with the Partnership that, unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and any Investorelectronic road show.
Appears in 1 contract
Sources: Underwriting Agreement (Suburban Propane Partners Lp)
Additional Covenants. The Company covenants Genesis Parties jointly and agrees severally covenant and agree with the Placement Agents several Underwriters that:
(a) The Company Partnership will use its best efforts (i) to prepare and timely transmit copies of the Prospectus, and any amendments or supplements thereto, to file with the SEC for filing pursuant to under Rule 424(b) of the 1933 Act Rules and RegulationsRegulations a Prospectus in a form approved by the Underwriters, (ii) to cause the Registration Statement to remain effective and (iii) if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, to cause such post-effective amendment to the Registration Statement to become effective as promptly as possible.
(b) The Company has furnished or Partnership will deliver promptly advise the Underwriters of (i) the time when any post-effective amendment to the Placement Agents Registration Statement referred to in Section 5(a) hereof has become effective and counsel (ii) any request of the SEC for the Placement Agents, without charge, conformed copies amendment of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished for supplement to the Placement Agents will be identical to Preliminary Prospectus or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will deliver to the Underwriters as soon as practicable after the date of this Agreement as many copies of the Preliminary Prospectus and the Prospectus and any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act. The Partnership will deliver to the Underwriters one signed copy of (i) the Registration Statement as originally filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) each consent and certificate included in, or filed as an exhibit to, the Registration Statement as so amended or supplemented, and will deliver to the Underwriters such additional conformed copies of the Registration Statement and all amendments and supplements thereto as the Underwriters may reasonably request.
(d) During the period when a prospectus relating to any of the Units is required to be delivered under the 1933 Act or the 1933 Act Rules and Regulations by any Underwriter or dealer, the Partnership will not file any amendment or supplement (other than (i) a Current Report on Form 8-K disclosing the terms of this Agreement, containing exhibits to the Registration Statement, or updating its risk factors contained in the Prospectus and (ii) an Annual Report on Form 10-K for the year ending December 31, 2005) to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Preliminary Prospectus or the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(de) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ef) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement AgentsUnderwriters (upon advice of counsel), 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available (including by means of filing on the SEC's EDGAR system) to its security holders h▇▇▇▇▇s annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the . The Partnership will, for a period beginning of two years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available (including by means of filing on the Company SEC's EDGAR system) to the Underwrite▇▇ ▇ copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or publicly filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available (including by means of filing on the SEC's EDGAR system) to the Under▇▇▇▇▇rs similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership's financial statements. Any report, document or other information required to be furnished, delivered or made available under this paragraph shall be furnished, delivered or made available as soon as practicable after such report, document or information becomes publicly available.
(j) The Partnership will not, during the 90 days after the date of the Prospectus Supplement, without the prior written consent of the Placement AgentsA.G. Edwards & Sons, Inc., ▇▇▇▇▇▇▇▇ ▇▇ indirectly, (i) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of, ) any equity Common Units or securities of the Company, except convertible into or exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock Units (other than Common Units issued pursuant to any employee stock incentive plan benefit plans, qualified unit 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 Units or securities convertible into or exchangeable for Common Units (other than the grant of options pursuant to option plans existing or the date hereof) or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (m) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with National Association of Securities Dealers, Inc. ("NASD") Rule 2711, if (i) during the last 17 days of the 90-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (ii) prior to the expiration of the 90-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then the restrictions imposed by this paragraph and the letters referred to in paragraph (m) below 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. The restrictions described in this paragraph shall not apply to the issuance or sale of Common Units (i) to the Underwriters pursuant to this Agreement or to the General Partner pursuant to the exercise of its preemptive right to purchase Common Units under Section 5.6 of the Partnership Agreement, (ii) in exchange (in full or part) for the acquisition of assets, businesses or the capital stock or other ownership interests of businesses by the Partnership or the Subsidiaries or (iii) in private placements, so long as, with respect to clauses (ii) and (iii) of this sentence, each recipient or other transferee of Common Units issued or transferred in exchange for such assets, businesses, capital stock or other ownership interests and each purchaser in such private placements, as the case may be, agrees to be bound by the restrictions set forth in this paragraph.
(jk) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements The Partnership has applied for listing of the Company Units on the American Stock Exchange and will use its subsidiaries for any periods subsequent best efforts to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by laweffect that listing, subject to notice of issuance, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nm) The Company Genesis Parties will use cause the General Partner and those of its reasonable best efforts directors and officers named in Schedule II, to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access furnish to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis timeUnderwriters, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the time that confirmations are given economic benefits or sentrisks of ownership of such Common Units, as specified whether any such transaction described in clause (i) or (ii) above is to be settled by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.delivery of Common Units or other securities, in cash or otherwise, in each case during the 90 days after the date of the Prospectus, without the prior written consent of A.G. Edwards & Sons, Inc.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and to counsel for the Placement Agents, without charge, conformed Agents (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agents or counsel for the Placement Agents and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agents as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agents may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agents of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Securities or threatening the Warrant Shares for offering or sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the consent of the Lead Placement Agent before taking, or failing to take, any action that would cause the Company to make an offer of Securities that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule I hereto.
(d) The Company will not take any action that would result in the Placement Agents or the Company being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations a Free Writing Prospectus prepared by or on behalf of the Placement Agents that the Placement Agents otherwise would not have been required to file thereunder.
(e) If the Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agents, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the SEC and furnish, at its own expense, to the Placement Agents and to any dealer upon request, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Lead Placement Agents Agent shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agents after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any of the Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any of the Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any of the Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities and Warrant Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(hk) During The Company will apply the period when a prospectus relating to any proceeds from the sale of the Securities is required as set forth in the description under “Use of Proceeds” in the Disclosure Package and the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(l) The Company will promptly provide the Placement Agents with copies of all correspondence to be delivered and from, and all documents issued to and by, the SEC in connection with the registration of the Securities and the Warrant Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement, the Disclosure Package or the Prospectus.
(m) The Company will use its best efforts to obtain approval for, and maintain the listing of the Shares and the Warrant Shares on, the American Stock Exchange.
(n) The Company will cause its directors and officers to furnish to the Placement Agents, on or prior to the date of this Agreement, a “lock-up” letter or letters, in the form attached hereto as Exhibit C.
(o) During any period in which a prospectus (or in lieu thereof, a notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) is required by law to be delivered by the Placement Agents or a dealer, the Company will promptly file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c)13, 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information information, which may be unaudited. The Company will deliver to the Placement Agents similar reports with respect to any significant Subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, that are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (o) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(mp) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesSubsidiaries, or the offering of the Securities, without your the prior written consentconsent of the Lead Placement Agent. In the event that any such disclosure is required by law, the Company will promptly notify you the Placement Agents of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you the Placement Agents to comment on any press release or other communication.
(nq) The Company will use its reasonable best efforts shall reserve and keep available at all times a sufficient number of shares of Common Stock for the purpose of enabling the Company to obtain approval for, and maintain issue the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap MarketShares.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pr) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis Eastern Standard time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Placement Agency Agreement (Cortex Pharmaceuticals Inc/De/)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) one signed copy of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and RegulationsAct, as now and hereafter amended, and by the rules 1933 Act Rules and regulations of the SEC thereunder, as Regulations from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or furnished to or filed with the SEC pursuant to the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished to the Underwriters under this paragraph (h) shall be so furnished as soon as practicable after such report, document or information becomes available; provided that the Underwriters consent to electronic delivery of conformed copies of any such documents, and the Company or such significant subsidiary may so furnish such documents as are available electronically by means of electronic delivery to the Underwriters.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, Shares and sales of shares of Common Stock to the employees of the Company or its subsidiaries pursuant to any employee stock incentive plan existing the exercise of options outstanding on the date hereofhereof under the Company's Incentive Stock Option Plan 1996 and 1999 Stock Option and Equity Incentive Plan.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and in, the Investor Warrant Shares on The Nasdaq SmallCap National Market.
(o) The Company will cause its directors and officers and each holder of 5% of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock, to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, and the Company will not, directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 180 days from the Effective Date, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except: (1) to the extent as may be set forth in any such letter or letters, (2) for the Shares sold hereunder and (3) for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options outstanding on the date hereof and such additional options as may be issued during such period consistently with past practice under the Company's Incentive Stock Option Plan 1996 and 1999 Stock Option and Equity Incentive Plan.
(p) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pq) The Company and its subsidiaries will maintain such controls and other procedures including without limitation those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission's rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company's management, including its Chief Executive Officer or officers and Principal Financial Officer or officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to Company, including its subsidiaries, is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(r) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of of
(i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qs) The Company and its subsidiaries will execute and deliver any stock purchase agreement reasonably requested by any Investorcomply with all effective applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Stockholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) If the Registration Statement is not effective under the Act, the Company will use its commercially reasonable efforts to cause the Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of the time when the Registration Statement has become effective. The Company (i) will prepare and timely transmit copies of file with the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Commission under Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to , if required, a Prospectus containing information previously omitted at the Placement Agents and counsel for the Placement Agents, without charge, conformed copies time of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or in reliance on Rule 430A of the initiation Rules and Regulations or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order andotherwise or a Term Sheet or Abbreviated Term Sheet, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(cas applicable;(ii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare and file with commercially reasonable efforts to prevent the SECissuance of any such stop order preventing or suspending the use of the Prospectus and, and furnish if issued, to obtain as soon as possible the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliancelifting thereof.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the laws Underwriters may reasonably request.
(d) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any jurisdictionPreliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date three signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) The Company will not file any amendment or supplement to the Registration Statement, whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus, including the issuance or filing of any term sheet within the meaning of Rule 434, of which you shall not previously have been advised or to which you shall reasonably object; and will prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or supplement to the Prospectus, or make any amendment or supplement to the Prospectus, including the issuance or filing of any term sheet within the meaning of Rule 434, which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its commercially reasonable efforts to cause the same to become promptly effective.
(f) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the The Company will make generally available to its security holders stockholders and will file as an exhibit in a report pursuant to holders of the SecuritiesExchange Act, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(h) During The Company will, for a period of three years from the period when Closing Date, deliver to the Representatives at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its stockholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the 1934 Commission pursuant to the Act or the Exchange Act. The Company will furnish deliver to its security holders annual the Representatives similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kj) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its commercially reasonable best efforts to obtain approval for, and maintain the for quotation of the Shares and Common Stock on the Investor Warrant Shares on The Nasdaq SmallCap MarketNational Market (the "Nasdaq").
(om) The Selling Stockholders, severally and not jointly, and the Company hereby agree to, and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that the Company shall, concurrently with the execution of this Agreement, deliver an agreement executed by (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation each of the Company’s consolidated financial statements directors and to maintain accountability for the assets officers of the Company and its subsidiaries(ii) each Selling Stockholder, pursuant to which each such person and entity agrees, not to, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge (iii) access other than to the assets Company) or grant any option to purchase or otherwise dispose or transfer (or announce any offer, sale, offer of sale, contract of sale, pledge, grant of any option to purchase or other disposition or transfer)(i) any shares of Common Stock or other capital stock of the Company, or (ii) any other securities convertible into, or exchangeable or exercisable for, shares of Common Stock or such other capital stock, beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such person, without the prior written consent of ▇. ▇. ▇▇▇▇▇▇▇ & Sons, Inc. for a period of 180 days after the date of the Prospectus, other than (A) pursuant to a tender or exchange offer for shares of Common Stock,(B) to an immediate family member or a trust established for the benefit of such person or an immediate family member of such person (provided that any such family member or trust shall have executed and delivered to the Underwriters an agreement of substantially the tenor of this Section 5(m)),(C) pursuant to a qualified domestic relations order (provided that any such party shall have executed and delivered to the Underwriters an agreement of substantially the tenor of this Section 5(m)),(D) pursuant to a pledge or gift of such shares (provided that any such pledgee or donee shall have executed and delivered to the Underwriters an agreement of substantially the tenor of this Section 5(m)), or (E) by operation of law. Notwithstanding the foregoing, during such period the Company may (1) grant awards pursuant to the Company's 1997 Omnibus Plan,(2) issue shares of its Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and its subsidiaries is permitted only disclosed in accordance with management’s authorization, the Prospectus and (iv3) the recorded accounts issue shares of the assets of the Company its Common Stock to its Employees' Stock Ownership Plan and its subsidiaries are compared with existing assets at reasonable intervalsEmployees' Stock Equivalence Plan.
(pn) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 Each of the 1933 Act Selling Stockholders will use its commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the earlier of (i) 9:00 p.m.Closing Date or any Option Closing Date, St. Louis time, on as the date of this Agreementcase may be, and (ii) to satisfy all conditions precedent to the time that confirmations are given or sent, as specified by Rule 462(b)(2)delivery of the Shares.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Vari Lite International Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents Agent that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents Agent and to counsel for the Placement Agents, without charge, conformed Agent (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agent or counsel for the Placement Agent and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agent as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agent may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agent of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Securities or threatening the Warrant Shares for offering or sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the Placement Agent’s consent before taking, or failing to take, any action that would cause the Company to make an offer of Securities that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule I hereto.
(d) The Company will not take any action that would result in the Placement Agent or the Company being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations a Free Writing Prospectus prepared by or on behalf of the Placement Agent that the Placement Agent otherwise would not have been required to file thereunder.
(e) If the Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the SEC and furnish, at its own expense, to the Placement Agent and to any dealer upon request, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents Agent shall not previously have been advised and furnished with a copy or to which the Placement Agents Agent shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agent after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Agent shall occur as a result of which, in the opinion of the Company or the Placement AgentsAgent, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Agent a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Agent may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jk) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Disclosure Package and the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kl) The Company will promptly provide you the Placement Agent with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement Statement, the Disclosure Package or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(lm) Prior to the Closing Date, the Company will furnish to youthe Placement Agent, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(mn) The Company will use its best efforts to obtain approval for, and maintain the listing of the Securities on, the Nasdaq Global Market.
(o) The Company will cause its directors and officers to furnish to the Placement Agent, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Placement Agent, pursuant to which each such person shall agree not to, and the Company will not, and will not publicly announce any intention to, during the period ending 90 days after the date of the Prospectus, without the prior written consent of the Placement Agent, directly or indirectly, (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; (2) 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 or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
(p) The restrictions contained in the preceding paragraph shall not apply to (a) the issuance by the Company of 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 Placement Agent has been advised in writing or the granting or exercise of options or stock purchase rights pursuant to the Company’s stock option and stock purchase plans, whenever granted; provided that the underlying shares of Common Stock issued to any person who has delivered a lock-up agreement pursuant to this Section 4(o) hereto shall continue to be subject to the restrictions contained in the immediately preceding paragraph or such lock-up agreement, as applicable; (b) the issuance by the Company of shares of Common Stock or options to purchase shares of Common Stock to, or the repurchase by the Company of unvested shares of Common Stock upon termination of service from, an employee, director, consultant other service provider, pursuant to the Company’s stock option or stock purchase plans in effect on the date hereof or approved by the stockholders before the date hereof; provided that the shares of Common Stock or options to purchase shares of Common Stock issued to the Company’s directors and executive officers shall be subject to the restrictions contained in the lock-up agreements delivered pursuant to this Section 4(o); and (c) the filing by the Company of any registration statement with the Commission on Form S-8 relating to the offering of securities pursuant to the terms of a stock option or stock purchase plan of the Company in effect on the date hereof or approved by the stockholders before the date hereof.
(q) Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to 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 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. The Company shall promptly notify the Placement Agent of any earnings release, news or event that may give rise to an extension of the initial 90-day restricted period.
(r) The Company and its Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls that provide reasonable assurance that (1) transactions are executed in accordance with management’s general or specific authorization, (2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its Subsidiaries, (3) access to the assets of the Company and its Subsidiaries is permitted only in accordance with management’s general or specific authorization, and (4) the recorded accounts of the assets of the Company and its Subsidiaries are compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(s) During any period in which a prospectus (or in lieu thereof, a notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) is required by law to be delivered by the Placement Agent or a dealer, the Company will promptly file all documents required to be filed with the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information, which may be unaudited. The Company will deliver to the Placement Agent similar reports with respect to any significant Subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, that are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (s) shall be furnished as soon as practicable after such report, document or information becomes available.
(t) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(u) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.as
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying 33 HALE ▇▇▇ DORR DRAFT 5/3/97 endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders the Securities Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the 35 HALE ▇▇▇ DORR DRAFT 5/3/97 Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.Option Closing Date),
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares on, the National Association of Securities Dealers, Inc. Automated Quotation/National Market System (the "Nasdaq/NMS").
(m) For a period of 180 days from the Effective Date, the Company will not, and will use its best efforts to cause its directors and officers to not, directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Investor Warrant Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares on The Nasdaq SmallCap Marketsold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options under the Company's stock option plan.
(n) For a period of 180 days from the Effective Date, the Selling Shareholders will not directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock or rights to acquire such shares without your prior written consent, except for the Shares sold hereunder.
(o) The Company and its subsidiaries subsidiary will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated 's financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries subsidiary is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries subsidiary are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Advanced Communication Systems Inc)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may have reasonably designate designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as is reasonably required for the laws offering, sale and distribution of any jurisdictionthe Shares.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders the Securities Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all material respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesCompany, or the offering of the SecuritiesShares, without your prior written consent. In .
(l) For a period of 180 days from the event that any such disclosure is required by lawEffective Date, the Company will promptly notify you not, and will use its best efforts to cause its directors and officers to not, directly or indirectly offer for sale, sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such required disclosure shares without your prior to issuing any press release or other communication or holding any press conferencewritten consent, and, except for the Shares sold hereunder and except for sales of shares of Common Stock to the extent reasonably practicableCompany's employees or directors pursuant to the exercise of options under the Company's stock option plans.
(m) For a period of 180 days from the Effective Date, the Company Selling Shareholders will permit you not directly or indirectly offer for sale, sell, contract to comment on sell or otherwise dispose of any press release shares of the Company's Common Stock, any securities exchangeable for Common Stock or other communicationrights to acquire such shares without your prior written consent, except for the Shares sold hereunder or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of).
(n) The Company will use its reasonable best efforts to obtain approval for, has caused each officer and maintain the quotation director and specific shareholders of the Shares Company as requested by you, to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Investor Warrant Shares on The Nasdaq SmallCap MarketUnderwriters, pursuant to which each such person shall agree not to, directly or indirectly, offer for sale, sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or rights to acquire such shares or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the Effective Date without your prior written consent (the "Lockup Agreements").
(o) The Company, and any subsidiaries of the Company and its subsidiaries in the future, will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's financial statements, and, if applicable, such subsidiaries on a consolidated financial statements basis, and to maintain accountability for the assets of the Company and its such subsidiaries, (iii3) access to the assets of the Company and its such subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its such subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The In addition to and not in lieu of the covenants set forth in the Credit Agreement, the Credit Parties hereby covenant and agree that they shall satisfy and perform the following covenants to the Requisite Lenders’ satisfaction on or before the dates set forth below, provided that any failure by the Credit Parties to fully and timely satisfy any of the conditions set forth below, if such failure shall continue for ten (10) days following written notice of such failure to Company covenants and agrees with by the Placement Agents thatRequisite Lenders or Administrative Agent issued at the request of Requisite Lenders, shall constitute an Event of Default:
(a) The Company will timely transmit copies of on or before April 30, 2006, the ProspectusCredit Parties shall deliver to Administrative Agent and Requisite Lenders updated insurance certificates naming the Administrative Agent and Lenders as loss payee and additional insured, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.as applicable;
(b) The Company has furnished on or will deliver before April 30, 2006, the Credit Parties shall have duly executed and delivered to Administrative Agent and Requisite Lenders amendments to control agreements to evidence the Placement Agents and counsel for change in the Placement Agents, without charge, conformed copies customer as a result of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.XO Merger;
(c) The on or before April 30, 2006, the Company: (i) shall be registered with the appropriate Governmental Authorities as the owner of all Intellectual Property transferred to Company will not file any amendment or supplement pursuant to the Registration StatementXO Merger Documents; and (ii) shall execute and deliver to Administrative Agent all amendments, reasonably requested by Requisite Lenders, to any and all filings that Administrative Agent has on record at the Prospectus (or any other prospectus relating United States Patent and Trademark Office and/or United States Copyright Office, as applicable, with respect to Intellectual Property that was transferred to Company pursuant to the Securities filed pursuant XO Merger, in each case to Rule 424(b) of evidence the 1933 Act Rules and Regulations that differs from the Prospectus change in owner as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.result thereof;
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents on or dealerbefore April 30, the Company will comply2006, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised deliver to Administrative Agent and Requisite Lenders a good standing certificate from the applicable Governmental Authority of Company’s jurisdiction of formation and from each jurisdiction in writing by the Placement Agents shall occur as a result of which, in the opinion of the which is Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify qualified as a foreign corporation or other entity to do business;
(e) on or before April 30, 2006, the Credit Parties shall have delivered to Administrative Agent and Requisite Lenders supplements to Schedules 4.1 (General Information), 4.2 (Location of Equipment and Inventory), 4.4 (Investment Related Property), 4.5 (Material Contracts), 4.6 (Description of Letters of Credit), 4.7 (Intellectual Property) and 4.8 (Commercial Tort Claims) to the Pledge and Security Agreement, which supplements shall be required in form and content reasonably satisfactory to qualify the Requisite Lenders and shall be attached hereto as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.Exhibit 9(e); and
(gf) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulationson or before April 30, 2006, the Company will make generally available Credit Parties shall deliver to its security holders Administrative Agent and Requisite Lenders amended and restated disclosure schedules to holders of the SecuritiesCredit Agreement and Pledge and Security Agreement, which shall be in form and content reasonably satisfactory to the Requisite Lenders and shall be attached hereto as soon as practicable, an earning statement Exhibit 9(f) (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealercollectively, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants “Amended and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2Restated Disclosure Schedules”).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Ratification and Amendment Agreement (Xo Holdings Inc)
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a term sheet or abbreviated term sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed and of each amendment thereto Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriters of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Underwriters and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will shall furnish to its security holders annual reports containing rep▇▇▇▇ ▇▇▇taining financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company shall deliver to the Underwriters similar report▇ ▇▇▇▇ ▇espect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after through the Closing Date (and, if applicable, the Option Closing Date), the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, or publicly announce an intention to effect any equity such transactions, any securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, as amended or supplemented, which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 ActAct for the sale of the Shares, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m.8:00 P.M., St. Louis New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith consult with you concerning the issuance of a press release or other public statement, responding to or commenting on such rumor, publication or event.
(r) The Company will cause each of its directors and executive officers set forth on Annex E hereto to execute and deliver to the Representatives "lock-up" agreements, each substantially in the form of Annex D hereto.
(s) The Company will continue to qualify as a REIT under the Code.
(t) For the fiscal year ended December 31, 2003, the Company had retained Ernst & Young LLP as its qualified accountants. For the fiscal year ended December 31, 2004, the Company has retained KPMG LLP as its qualified accountants. Each year, in the course of its audit Ernst & Young reviewed the Company's test procedures and conducted annual compliance reviews designed to determine the Company's compliance with REIT provisions of the Code and otherwise has assisted the Company in monitoring appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2004 fiscal year the Company will use its best efforts to engage KPMG LLP to review the Company's test procedures and conduct annual compliance reviews designed to determine the Company's compliance with REIT provisions of the Code and otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(u) The Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request. The Underwriters, counsel to the Underwriters, and their respective authorized representatives will use such information only in full compliance with Regulation FD.
(v) During the period beginning from the date of this Agreement and continuing through the Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably requested by or pay anyone any Investorcompensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(w) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and will 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 Sarbanes Oxley Act.
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations. The Company will pay all applicable registration fees that have been deferred pursuant to Rule 456 of the 1933 Act Rules and Regulations, if any, to the SEC within the time period and as required by Rule 456 of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement AgentsUnderwriters, without charge, conformed (i) three signed copies of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives, without charge, as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the Representative’s consent before taking, or failing to take, any action that would cause the Company to make an offer of Shares that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule II hereto. Notwithstanding the foregoing, if requested by the Representatives, the Company shall prepare a final term sheet, containing a description of the Shares and certain other information in respect of the offering of such Shares, in a form approved by the Representatives and file such pursuant to Rule 433(d) of the 1933 Act Rules and Regulations within the time required by such Rule.
(d) The Company will not take any action that would result in any Underwriter or the Company being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations 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 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 or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the SEC and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(hk) During The Company will, for a period of five years from the period when a prospectus relating Closing Date, furnish or make available to any the Underwriters copies of the Securities is required to be delivered under the 1933 Act annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to Sections 13(a), 13(c), 14 the 1933 Act or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(il) During Without limiting the covenants and agreements contained in Section 5(q), during the period beginning from the date of this Agreement and continuing to and including the date that is earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofShares.
(jm) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kn) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement Statement, the Disclosure Package or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(lo) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mp) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesSubsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nq) The Company will use its reasonable best efforts to obtain approval forfor trading of the Shares, and maintain the quotation of the Shares and the Investor Warrant Shares Shares, on The Nasdaq SmallCap National Market.
(or) The Company will cause its directors and officers and to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form attached hereto as Exhibit A pursuant to which each such person shall agree not to, and the Company will not, and will not publicly announce any intention to, during the period ending 90 days after the date of this Agreement, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., on behalf of the Underwriters, directly or indirectly, (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; (2) 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 or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The restrictions contained in the preceding paragraph shall not apply to (a) the sale of the Shares to the Underwriters, (b) the issuance by the Company of 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 Representatives have been advised in writing; provided that the underlying shares of Common Stock issued to any person who has delivered a lock-up agreement pursuant to this Section 5(q) shall continue to be subject to the restrictions contained in the immediately preceding paragraph or such lock-up agreement, as applicable; (c) the issuance by the Company of shares of Common Stock or options to purchase shares of Common Stock to, or the repurchase by the Company of unvested shares of Common Stock upon termination of service from, an employee, director, consultant other service provider, pursuant to the Company’s stock incentive plans in effect on the date hereof; provided that the shares of Common Stock or options to purchase shares of Common Stock issued to the Company’s directors and executive officers shall be subject to the restrictions contained in the lock-up agreements delivered pursuant to this Section 5(q); (d) the filing by the Company of any registration statement with the SEC on Form S-8 relating to the offering of securities pursuant to the terms of a stock incentive plan of the Company in effect on the date hereof. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to 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 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. The Company shall promptly notify the Representatives of any earnings release, news or event that may give rise to an extension of the initial 90-day restricted period.
(s) The Company and its subsidiaries Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s general or specific authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its subsidiariesSubsidiaries, (iii3) access to the assets of the Company and its subsidiaries Subsidiaries is permitted only in accordance with management’s general or specific authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries Subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.inter
Appears in 1 contract
Additional Covenants. The Company covenants and agrees the Operating Partnership each covenant and agree with the Placement Agents you that:
(a) The Company will timely transmit copies (i) prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the name of the ProspectusUnderwriter and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares, and any amendments or supplements thereto, to file the SEC for filing Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no later than the Commission's close of business on the second business day following the date of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies determination of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies offering price of the Registration Statement and each Shares; (ii) not file any amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents you shall not previously have been advised and furnished with a copy or to which the Placement Agents you shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will and
(iii) promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During the period when a prospectus relating to The Company will advise you promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number use of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to of the Closing Date, the Company will issue no press release institution or other communication, directly or indirectlythreatening of any proceedings for that purpose, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain prevent the quotation issuance of any such stop order preventing or suspending the use of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements Prospectus and to maintain accountability for obtain as soon as possible the assets of the Company and its subsidiarieslifting thereof, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsif issued.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Weeks Corp)
Additional Covenants. The Company covenants and agrees with the Placement Agents you that:
(a) The Company will timely transmit copies (i) prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the name of the ProspectusUnderwriter and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares, and any amendments or supplements thereto, to file the SEC for filing Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no later than the Commission's close of business on the second business day following the date of the 1933 Act Rules and Regulations.
determination of the offering price of the Shares; (bii) The Company has furnished or will deliver prior to the Placement Agents and counsel for the Placement AgentsClosing Date, without charge, conformed copies of the Registration Statement as originally filed and of each not file any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents you shall not previously have been advised and furnished with a copy or to which the Placement Agents you shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and (iii) prior to the Company will Closing Date, promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed; PROVIDED that (ii) and (iii) shall not apply to any amendment, supplement or Prospectus filed in connection with the offer and sale of securities to any unit investment trust (a "UIT TRANSACTION").
(db) During the period when a prospectus relating to The Company will advise you promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with you and otherwise cooperate your counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated where such qualification is required and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that PROVIDED the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdictionjurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to you, without charge, as many copies of the 1933 Act and Rule 158 Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as you may from time to time reasonably request. The Company consents to the use of such Prospectus by you, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares.
(e) If, during the period in which a prospectus is required by law to be delivered by an underwriter or dealer, any event (other than a UIT Transaction) shall occur as a result of which, in the judgment of the Company or in reasonable opinion of your counsel, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders and to holders of the Securitiesshareholders, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company will, for a period of three years from the Closing Date, deliver to you at your principal executive offices a copy of each report mailed by the Company to its stockholders or filed with the Commission pursuant to the Act or the Exchange Act. Any report required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth Shares substantially in accordance with the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of not issue any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences conference, with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event , which may not be unreasonably withheld or delayed; PROVIDED, however, that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior this subsection (j) shall not apply to issuing any press release releases or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationin connection with a UIT Transaction.
(nk) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(ol) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pm) If During any period in which a prospectus is required by law to be delivered by the Company elects to rely on Rule 462(b) under the 1933 ActUnderwriter or dealer, the Company shall both will promptly file an Abbreviated Registration Statement all documents required to be filed with the SEC in compliance with Rule 462(bCommission pursuant to Sections 13, 14 or 15(d) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Exchange Act.
(qn) The Company will execute and deliver any stock purchase agreement reasonably requested use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code, unless the Company's Board of Directors determines by any Investorresolution that it is in the best interests of the Company's stockholders not to so qualify.
Appears in 1 contract
Sources: Underwriting Agreement (Macerich Co)
Additional Covenants. (a) The Company covenants EVEP Parties (but not including the EnCap Entities) jointly and agrees severally covenant and agree with the Placement Agents several Underwriters with respect to the provisions of this Section 6(a), and the EnCap Entities severally as to themselves only covenant and agree with the several Underwriters with respect to Section 6(a)(xiii) solely as such section relates to the EnCap Entities, that:
(ai) The Company Partnership will timely transmit copies of the ProspectusProspectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations or, if applicable, Rule 430A(a)(3) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Permitted Free Writing Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus, Permitted Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Prospectus or Permitted Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Prospectus or any Permitted Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the . The Partnership will, for a period beginning of two years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available to the Company Underwriters via the Commissions’ Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements.
(ix) The Partnership and the General Partner will not, during the 180 days after the date of the Prospectus, without the prior written consent of the Placement AgentsA.▇. ▇▇▇▇▇▇▇ & Sons, Inc., which consent will not be unreasonably withheld, directly or indirectly, (i) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than Common Units issued (a) pursuant to employee benefit plans, any equity securities qualified unit option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (b) to affiliates, (c) in connection with acquisitions of assets accretive to the Companycommon unitholders or businesses in which common units are issued as consideration, except for the Securitiesor (d) overallotment option; provided, however, that any such recipient of common units will agree to be bound by these provisions for the Company may issue, remainder of the 180-day period) or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options to purchase, shares of Common Stock pursuant to any employee stock incentive plan option plans existing on or the date hereof) or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (xiii) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with NASD Rule 2711, if (1) during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this paragraph (i) and the letters referred to in paragraph (xiii) below 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.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects Prospectus and will file with the requirements SEC such information on Form 10-K or Form l0-Q as may be required by Rule 463 of Item 504 of Regulation S-K.the 1933 Act Rules and Regulations.
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lxii) Prior to the Closing Date, the Company The Partnership will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements apply for listing of the Company Units on the NASDAQ Global Market and will use its subsidiaries for any periods subsequent best efforts to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by laweffect that listing, subject to notice of issuance, prior to the Closing Date.
(xiii) The EVEP Parties will cause the directors and officers of the GP LLC, the Company will issue no press release members and executive officers of EnerVest Management GP, L.C., a Texas limited liability company, EVMP, EVOC, CGAS, each of the Sponsor Entities and EV Investors, to furnish to the Underwriters, on or other communicationprior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case during the 180 days after the date of the Prospectus, without the prior written consent of A.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
(xiv) The Partnership agrees that, unless it has obtained or will obtain the prior written consent of A.▇. ▇▇▇▇▇▇▇ & Sons, Inc., it has not made and will hold no press conferences with respect not make any offer relating to the Company Securities that would constitute an Issuer Free Writing Prospectus or any of its subsidiaries, that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the financial condition, results of operations, business, properties, assets Partnership with the SEC or liabilities retained by the Partnership under Rule 433; provided that the prior written consent of the Company or any of its subsidiaries, or the offering parties hereto shall be deemed to have been given in respect of the Securitiesfree writing prospectuses included in Schedule III hereto and any electronic road show. The Partnership agrees that (x) it has treated and will treat, without your prior written consent. In as the event that case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any such disclosure is required by lawPermitted Free Writing Prospectus, including in respect of timely filing with the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conferenceSEC, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationlegending and record keeping.
(nxv) The Company will use its reasonable best efforts If, at any time prior to obtain approval for, and maintain the quotation filing of the Shares Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) notify promptly A.▇. ▇▇▇▇▇▇▇ & Sons, Inc. so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and the Investor Warrant Shares on The Nasdaq SmallCap Market(iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(oxvi) The Company It is understood that up to 195,000 of the Firm Units (the “Directed Units”) will initially be reserved by the Underwriters for offer and its subsidiaries will maintain sale to officers, directors, employees and keep accurate books persons having business relationships with the Partnership Entities (“Directed Unit Participants”) upon the terms and records reflecting their assets conditions set forth in the Prospectus (the “Directed Unit Program”) and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation rules and regulations of the Company’s consolidated financial statements NASD and to maintain accountability for the assets that any allocation of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only such Directed Units among such persons will be made in accordance with management’s authorizationtimely directions received by R▇▇▇▇▇▇ J▇▇▇▇ & Associates, and (iv) Inc. from the recorded accounts Partnership. Under no circumstances will R▇▇▇▇▇▇ J▇▇▇▇ & Associates, Inc. or any Underwriter be liable to any Partnership Entity or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalspublic offering contemplated hereby.
(pxvii) If the Company Partnership elects to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company several Underwriters jointly and severally covenant and agree with the Partnership that each Underwriter, severally and not jointly, agrees with the Partnership that, unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by any Investor.the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the p
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and to counsel for the Placement Agents, without charge, conformed Agents (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agents or counsel for the Placement Agents and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agents as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agents may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agents of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Disclosure Package, the Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) If the 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 or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agents, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the SEC and furnish, at its own expense, to the Placement Agents and to any dealer upon request, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(d) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents Representative shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agents after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(de) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ef) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading misleading, or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Agent or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not (i) be required to qualify as a foreign corporation or shall corporation, (ii) be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.or
Appears in 1 contract
Sources: Placement Agency Agreement (American Oil & Gas Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.any
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company EVEP Parties jointly and severally covenant and agree with the several Underwriters with respect to the provisions of this Section 5(a):
(i) The Partnership will timely transmit copies of the ProspectusPreliminary Prospectus and the Final Prospectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Final Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Permitted Free Writing Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or Issuer Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or Issuer Permitted Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership Entities or of which the Company Partnership shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Final Prospectus or any Issuer Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Final Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECCommission, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent registered public accountants accounting firm and furnish or make available and quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriters via the Commissions’ Interactive Data Electronic Applications (IDEA) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements.
(iix) During the The EVEP Parties will not, for a period beginning of 60 days from the date of the Final Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to sell 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 Units held by them or securities convertible into, or exchangeable for Common Units held by them, or sell or grant options, rights or warrants with respect to any Common Units held by them or securities convertible into or exchangeable for Common Units held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units held by them or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units (other than (1) any registration statement on Form S-8, (2) as otherwise excepted from this Agreement lock-up provision) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives; provided, however, that the foregoing restrictions do not apply to (a) issuances of Common Units pursuant to any existing employee benefit plans or (b) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and continuing capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance; and including the EVEP Parties will cause each of the directors and executive officers of the GP LLC, EnerVest, each of the EnCap Entities and EV Investors to furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 60 days from the date that is 30 days after of the Closing Date, the Company will notFinal Prospectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement Representatives; provided that EnerVest and its subsidiaries may distribute to sell, or otherwise dispose of, any equity securities their respective owners Common Units and Subordinated Units if the recipients of such units execute and deliver to the Company, except for Representatives lock-up agreements in the Securities; provided, however, that the Company may issue, or grant options to purchase, shares form of Common Stock pursuant to any employee stock incentive plan existing on the date hereofExhibit A hereto.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNASDAQ.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, it has not made and its subsidiaries will maintain not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and keep accurate books any electronic road show. The Partnership agrees that (x) it has treated and records reflecting their assets will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and maintain internal accounting controls (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xiv) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) transactions are executed in accordance with management’s authorization, notify the Representatives promptly so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission; and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of Representatives in such quantities as the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsRepresentatives may reasonably request.
(pxv) If the Company Partnership elects to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company several Underwriters severally but not jointly, covenant and agree with the Partnership that unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule III hereto and any Investorelectronic road show.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission SEC pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Act Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the SecuritiesShares; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any a Subscription Agreement or other stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.they
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Notes for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Notes; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Notes filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Notes by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Notes during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesNotes, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the period beginning from the date of this Agreement and continuing to hereof through and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for saleoffer, sell or enter into any agreement to sell, contract to sell or otherwise dispose of, of any equity debt securities of the Company, except for the Securities; provided, however, that issued or guaranteed by the Company may issue, or grant options to purchase, shares and having a tenor of Common Stock pursuant to any employee stock incentive plan existing on the date hereofmore than one year.
(j) The Company will apply the proceeds from the sale of the Securities Notes as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Notes under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date, the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesNotes, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationRepresentatives.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market[Reserved.]
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If [Reserved.]
(q) [Reserved.]
(r) The Company will use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2014, the Company elects retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and conducted annual compliance reviews designed to rely on Rule 462(bdetermine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2015 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) under Continuing through the 1933 Closing Date the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date, the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Notes other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(w) If so requested by the Representatives, the Company shall both file cause to be prepared and delivered, at its expense, by the Applicable Time, to the Representatives an Abbreviated Registration Statement “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of the Notes. As used herein, the term “electronic Prospectus” means a form of the most recent Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Notes, (ii) it shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, as the case may be; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally). The Company hereby confirms that, if so requested by the Representatives, it has included or will include in the Prospectus filed with the SEC an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus to such investor or representative.
(x) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of 405 under the 1933 Act Rules and Regulations; any such free writing prospectus the use of which has been consented to by the earlier of (i) 9:00 p.m., St. Louis time, Representatives is listed on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Schedule II hereto.
(qy) The Company has complied and will execute comply with the requirements of Rule 433 under the 1933 Act Rules and deliver Regulations applicable to any stock purchase agreement reasonably requested by Issuer Free Writing Prospectus, including timely filing with the SEC or retention where required and legending; the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the 1933 Act Rules and Regulations to avoid a requirement to file with the SEC any Investorelectronic road show.
(z) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents and each of them that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and to their respective counsel for the Placement Agents, without charge, conformed (i) such number of signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), and any amendments and supplements to the Registration Statement (including all documents incorporated by reference therein), as may be reasonably requested by the Placement Agents or their respective counsel and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Placement Agents as soon as practicable after the date of this Agreement as many copies of the Disclosure Package and the Prospectus (including all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Placement Agents may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Placement Agents of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Disclosure Package or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus, Disclosure Package or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Securities, or threatening the Offered Warrant Shares for offering or sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will obtain the Placement Agent’s consent before taking, or failing to take, any action that would cause the Company to make an offer of Securities that would constitute an Issuer Free Writing Prospectus or to be required to file a Free Writing Prospectus pursuant to Rule 433(d) of the 1933 Act Rules and Regulations, other than the Issuer Free Writing Prospectuses, if any, listed on Schedule I hereto.
(d) The Company will not take any action that would result in the Placement Agent being required to file with the SEC pursuant to Rule 433(d) of the 1933 Act Rules and Regulations a Free Writing Prospectus prepared by or on behalf of the Placement Agents that the Placement Agents otherwise would not have been required to file thereunder.
(e) If the Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in writing in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, the Company will forthwith prepare, file with the SEC and furnish, at its own expense, to the Placement Agent, either amendments or supplements to the Disclosure Package so that statements in the Disclosure Package as so amended or supplemented will not, in light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will comply with law.
(f) The Company will not file any amendment or supplement to the Registration Statement, the Disclosure Package, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement Statement, the Disclosure Package, or the Prospectus, of which the Placement Agents Agent shall not previously have been advised and furnished with a copy or to which the Placement Agents Agent shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Placement Agent after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to to, the Disclosure Package, the Prospectus has been filed.
(dg) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerAgent, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(eh) If, during the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerAgent, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Agent shall occur as a result of which, in the opinion of the Company or the Placement AgentsAgent, 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, not misleading misleading, (ii) any event shall occur as a result of which any Free Writing Prospectus conflicted or would conflict with the information in the Registration Statement, or (iiiii) it shall be necessary to amend or supplement the Registration Statement Statement, the Disclosure Package or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fi) During the period when a prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerAgent, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the such Placement Agents Agent may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gj) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make has made generally available to its security holders and to holders of the Securities, as soon as practicable, Securities an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jk) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Disclosure Package and the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kl) The Company will promptly provide you the Placement Agents with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement Statement, the Disclosure Package or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(lm) Prior to the Closing Date, the Company will furnish to youthe Placement Agents, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(mn) The Company will use its best efforts to obtain approval for, and maintain the listing of the Offered Common Shares, the Offered Warrant Shares and the Placement Warrant Shares for trading on, the American Stock Exchange (the “AMEX”).
(o) [Reserved]
(p) [Reserved]
(q) [Reserved].
(r) The Company and its Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls that provide reasonable assurance that (1) transactions are executed in accordance with management’s general or specific authorization, (2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its Subsidiaries, (3) access to the assets of the Company and its Subsidiaries is permitted only in accordance with management’s general or specific authorization, and (4) the recorded accounts of the assets of the Company and its Subsidiaries are compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(s) During any period in which a prospectus (or in lieu thereof, a notice contemplated by Rule 173(a) of the 1933 Act Rules and Regulations) is required by law to be delivered by the Placement Agents, the Company will promptly file all documents required to be filed with the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act and will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information, which may be unaudited. The Company will deliver to the Placement Agents similar reports with respect to any significant Subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, that are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (s) shall be furnished as soon as practicable after such report, document or information becomes available.
(t) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and will 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 S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(u) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesSubsidiaries, or the offering of the Securities, without your the Placement Agents’ prior written consentconsent which shall include e-mail. In the event that any such disclosure is required by law, the Company will promptly notify you the Placement Agent of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you the Placement Agents to comment on any press release or other communication.
(nv) The Company will use its reasonable best efforts shall reserve and keep available at all times a sufficient number of shares of Common Stock for the purpose of enabling the Company to obtain approval for, issue shares of Common Stock and maintain the quotation upon exercise of the Shares Offered Warrants and the Investor Warrant Shares on The Nasdaq SmallCap MarketPlacement Warrants.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pw) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis Eastern Standard time, or Eastern Daylight Savings time, whichever is in effect, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company parties agree to the following additional covenants and on or after Closing Date:
a. In the event Seller converts a number of shares of common stock in Buyer that gives him 51% of the total outstanding shares of common stock in Buyer, then Seller agrees to cancel the Preferred Shares.
b. In the event Seller demands payment of the Notes, then Seller agrees to cancel the Preferred Shares.
c. Buyer agrees to appoint two nominees of Seller to Buyer’s board of directors with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated final seat occupied by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) who will remain as sole officer of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible momentBuyer.
(c) The Company d. Buyer will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any post-effective amendment to the Registration Statement becomes effective Buyer’s registration statement, initially filed on April 15, 2014, or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealernew registration statement, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities laws, to register 7,500,000 shares of common stock (375,000 post-split shares) already converted by existing note holders of Buyer and the remaining shares of common stock underlying convertible notes not yet converted by existing note holders of Buyer. This right of registration does not extend to the Notes or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdictionPreferred Shares.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after e. Until the Closing Date, the Company parties will notmaintain in confidence, without will cause their respective employees, agents, and advisors to maintain in confidence, and will not use to the prior written consent detriment of another party or divulge to any third parties, other than their respective legal and financial advisors, auditors, representatives and any other governmental body having jurisdiction, any confidential written, oral, or other information obtained during the course of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC investigations in connection with this Agreement or the registration transactions contemplated herein, unless:
i. such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party;
ii. the use of such information is necessary or appropriate pursuant to the rules of any stock exchange or in making any filing or obtaining any consent or approval required for the consummation of the Securities under transactions contemplated herein; or
iii. the 1933 Act furnishing or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration use of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure information is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication necessary or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationappropriate in connection with legal proceedings.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Diamond Purchase Agreement (Precious Investments, Inc.)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed Underwriters (i) two signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein and documents incorporated in, or deemed filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations Regulations) that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofShares.
(ji) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(kj) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lk) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(ml) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nm) The Company will use its all commercially reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the American Stock Exchange.
(n) The Company will cause its directors and executive officers and the Investor Warrant Shares Mashantucket Pequot Tribal Nation to furnish to you, on The Nasdaq SmallCap Marketor prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, and the Company will not, directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 180 days from the Effective Date, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for sales of shares of Common Stock to the Company’s employees pursuant to the exercise of options outstanding on the date hereof under the Company’s stock option plan.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Southern Connecticut Bancorp Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, 5.2.1 Subject to the SEC for filing pursuant to Rule 424(b) terms of this Agreement, the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company Purchaser will use its best efforts to prevent the issuance of any stop order andtake, if any stop order is issuedor cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under this Agreement and applicable laws and regulations to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances of all Governmental Authorities, including all Antitrust Clearances necessary or advisable to be obtained in connection with the lifting thereof at transactions contemplated hereby (collectively, the earliest possible moment.
(c"Required Approvals") The Company will not file as soon as practicable after the date hereof and in any amendment or supplement case prior to the Registration StatementClosing, including (i) preparing and filing as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all Required Approvals and (ii) taking all reasonable steps as may be necessary to obtain all such Required Approvals. In furtherance and not in limitation of the foregoing, the Prospectus Purchaser agrees to make, as promptly as practicable, (A) appropriate filings with the Antitrust Authorities in accordance with applicable competition, merger control, antitrust, investment or any similar laws, and (B) all other prospectus necessary filings with other Governmental Authorities relating to the Securities filed pursuant transactions contemplated hereby, and, to Rule 424(bsupply as promptly as practicable any additional information or documentation that may be requested by such Governmental Authorities and to use best efforts to cause the receipt of Required Approvals as soon as practicable. The Purchaser shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any antitrust, competition or trade regulation law that may be asserted by any Antitrust Authority or other Governmental Authority with respect to the transactions contemplated hereby and shall defend through litigation on the merits any claim asserted in any court or other forum by any party, including appeals. In addition to and without limiting the foregoing, the Purchaser shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the 1933 Act Rules Purchaser or its Subsidiaries or, from and Regulations after the Closing, the Companies or their Subsidiaries, or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that differs from the Prospectus as filed pursuant limits its freedom of action with respect to, or its ability to such Rule 424(b)) and will not file retain, any document under the 1934 Act before the termination of the offering businesses, services or assets of the Securities by Purchaser, the Company if Companies or their respective Subsidiaries, in order to avoid the document would be deemed to be incorporated by reference into the Registration Statement filing of any suit or proceeding or the Prospectusentry of, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which effect the Placement Agents shall have reasonably objected dissolution of, any injunction, temporary restraining order or which is not other order in compliance any suit or proceeding in connection with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filedtransactions contemplated hereby.
(d) During the period when a prospectus 5.2.2 The Purchaser shall be entitled to direct any proceedings or negotiations with any Governmental Authority or Antitrust Authority relating to any of the Securities is required foregoing, provided that it shall keep PPR fully informed as to the status of such proceedings or negotiations and allow PPR's outside counsels to attend such proceedings or negotiations. Each of the Purchaser and the Sellers shall, in connection with the efforts referenced in Article 5.
3.1 above to obtain all Required Approvals, use its best efforts, to the extent practicable, and subject to the Purchaser's right not to disclose to the Sellers any data, information or documents which the Purchaser deems to be delivered under confidential and/or proprietary, to the 1933 Act by any Placement Agents extent such data, information or dealerdocument are disclosed to the Sellers' legal advisors on a confidential basis, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) subject to applicable law, permit the requirements Sellers to review in advance any proposed written communication between the Purchaser and any Antitrust Authority or other Governmental Authority, (iii) promptly inform the Sellers of Item 504 and provide, on a confidential basis, PPR's outside counsels a copy of Regulation S-K.
(kand, at the Sellers' reasonable request, supply to the Sellers) The Company will promptly provide you with copies of all any communication (or other correspondence to and or memoranda) received by the Purchaser from, or given by the Purchaser to, any Antitrust Authority or other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iv) consult with the Sellers in advance to the extent practicable of any meeting or conference with any Antitrust Authority or other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the applicable Antitrust Authority or other Governmental Authority or other Person, give the Sellers the opportunity to attend such meetings and conferences.
5.2.3 In furtherance and not in limitation of the covenants of the parties contained in Articles 5.2.1 and 5.2.2 above, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any regulatory law, or if any statute, rule, regulation, executive order, decree, injunction or administrative order is enacted, entered, promulgated or enforced by an Antitrust Authority or other Governmental Authority which would make the transactions contemplated hereby illegal or would otherwise prevent, delay or otherwise adversely affect the consummation of the transactions contemplated hereby, each of the Purchaser and the Sellers shall cooperate in all documents issued respects with each other and use its respective best efforts, including, subject to and byArticle 5.2.1 above, the SEC Purchaser's selling, holding separate or otherwise disposing of or conducting their business in a specified manner, or agreeing to sell, hold separate or otherwise dispose of or conduct their business in a specified manner or permitting the sale, holding separate or other disposition of, any assets of the Purchaser, or, after the Closing, the Companies or their respective Subsidiaries or the conducting of their business in a specified manner, to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that would make illegal, rescind or otherwise materially restrict the transactions contemplated hereby and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to not so affect the transactions contemplated hereby.
5.2.4 The Purchaser states that it is in the Purchaser's intention, and hereby agrees to use all reasonable efforts to ensure that the draft CO Form to be prepared in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files Transaction is filed with the SEC at any time until the expiration of one year from the date of the ProspectusEU Antitrust Authorities no later than September 16, 2002.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. (a) The Company covenants EVEP Parties (but not including the EnCap Entities) jointly and agrees severally covenant and agree with the Placement Agents several Underwriters with respect to the provisions of this Section 6(a), and the EnCap Entities severally as to themselves only covenant and agree with the several Underwriters with respect to Section 6(a)(xiii) solely as such section relates to the EnCap Entities, that:
(ai) The Company Partnership will timely transmit copies of the ProspectusProspectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations or, if applicable, Rule 430A(a)(3) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Permitted Free Writing Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus, Permitted Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Prospectus or Permitted Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Prospectus or any Permitted Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the . The Partnership will, for a period beginning of two years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available to the Company Underwriters via the Commissions' Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership's financial statements.
(ix) The Partnership and the General Partner will not, during the 180 days after the date of the Prospectus, without the prior written consent of the Placement Agents▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., which consent will not be unreasonably withheld, directly or indirectly, (i) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than Common Units issued (a) pursuant to employee benefit plans, any equity securities qualified unit option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (b) to affiliates, (c) in connection with acquisitions of assets accretive to the Companycommon unitholders or businesses in which common units are issued as consideration, except for the Securitiesor (d) overallotment option; provided, however, that any such recipient of common units will agree to be bound by these provisions for the Company may issue, remainder of the 180-day period) or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options to purchase, shares of Common Stock pursuant to any employee stock incentive plan option plans existing on or the date hereof) or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (xiii) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with NASD Rule 2711, if (1) during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this paragraph (i) and the letters referred to in paragraph (xiii) below 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.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects Prospectus and will file with the requirements SEC such information on Form 10-K or Form l0-Q as may be required by Rule 463 of Item 504 of Regulation S-K.the 1933 Act Rules and Regulations.
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lxii) Prior to the Closing Date, the Company The Partnership will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements apply for listing of the Company Units on the NASDAQ Global Market and will use its subsidiaries for any periods subsequent best efforts to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by laweffect that listing, subject to notice of issuance, prior to the Closing Date.
(xiii) The EVEP Parties will cause the directors and officers of the GP LLC, the Company will issue no press release members and executive officers of EnerVest Management GP, L.C., a Texas limited liability company, EVMP, EVOC, CGAS, each of the Sponsor Entities and EV Investors, to furnish to the Underwriters, on or other communicationprior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case during the 180 days after the date of the Prospectus, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
(xiv) The Partnership agrees that, unless it has obtained or will obtain the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., it has not made and will hold no press conferences with respect not make any offer relating to the Company Securities that would constitute an Issuer Free Writing Prospectus or any of its subsidiaries, that would otherwise constitute a "free writing prospectus" (as defined in Rule 405) required to be filed by the financial condition, results of operations, business, properties, assets Partnership with the SEC or liabilities retained by the Partnership under Rule 433; provided that the prior written consent of the Company or any of its subsidiaries, or the offering parties hereto shall be deemed to have been given in respect of the Securitiesfree writing prospectuses included in Schedule III hereto and any electronic road show. The Partnership agrees that (x) it has treated and will treat, without your prior written consent. In as the event that case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any such disclosure is required by lawPermitted Free Writing Prospectus, including in respect of timely filing with the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conferenceSEC, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationlegending and record keeping.
(nxv) The Company will use its reasonable best efforts If, at any time prior to obtain approval for, and maintain the quotation filing of the Shares Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) notify promptly ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and the Investor Warrant Shares on The Nasdaq SmallCap Market(iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(oxvi) The Company It is understood that up to 195,000 of the Firm Units (the "Directed Units") will initially be reserved by the Underwriters for offer and its subsidiaries will maintain sale to officers, directors, employees and keep accurate books persons having business relationships with the Partnership Entities ("Directed Unit Participants") upon the terms and records reflecting their assets conditions set forth in the Prospectus (the "Directed Unit Program") and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation rules and regulations of the Company’s consolidated financial statements NASD and to maintain accountability for the assets that any allocation of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only such Directed Units among such persons will be made in accordance with management’s authorizationtimely directions received by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, and (iv) Inc. from the recorded accounts Partnership. Under no circumstances will ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. or any Underwriter be liable to any Partnership Entity or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalspublic offering contemplated hereby.
(pxvii) If the Company Partnership elects to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company several Underwriters jointly and severally covenant and agree with the Partnership that each Underwriter, severally and not jointly, agrees with the Partnership that, unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a "free writing prospectus" (as defined in Rule 405) required to be filed by any Investor.the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the p
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Prospectus or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the For a period beginning of 90 days from the date of this Agreement and continuing to and including the date that is 30 days after the Closing DateAgreement, the Company will not, not without the prior written consent of Wachovia and ▇.▇.▇▇▇▇▇▇ (which may be by electronic mail), directly or indirectly (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, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Placement Agents1933 Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, offer for or publicly announce the intention to make any such offer, pledge, sale, sell contract to sell, purchase, grant, transfer, disposition or filing, or (ii) enter into any swap or other agreement to sellor transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Common Stock, whether any such swap, agreement, or otherwise dispose ofother transaction described in (i) or (ii) above is to be settled by delivery of Common Stock, any equity securities other securities, in cash or otherwise, except for (A) Common Stock issued pursuant to this Agreement, (B) Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, except (C) non-managing member units exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that such units referred to any employee stock incentive plan existing in this clause (C) are not exchangeable for Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Common Stock during such one year period), (D) Common Stock issuable upon the exchange of non-managing member units of subsidiaries of the Company outstanding on the date hereofof this Agreement or (E) registration statements filed in connection with future business combination transactions or registration statements on Form S-8 filed to register shares of Common Stock that are issuable pursuant to existing employee benefit plans of the Company.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Prospectus and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you consent of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationWachovia and ▇.▇.▇▇▇▇▇▇.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) [Reserved.]
(q) If at any time during the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on 90-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the opinion of Wachovia and ▇.▇.▇▇▇▇▇▇ the market price of the Shares has been or is likely to be materially affected (ii) regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the time that confirmations are given Prospectus), the Company will, after written notice from Wachovia and ▇.▇.▇▇▇▇▇▇ advising the Company to the effect set forth above, forthwith consult with Wachovia and ▇.▇.▇▇▇▇▇▇ concerning the issuance of a press release or sentother public statement, as specified by Rule 462(b)(2)responding to or commenting on such rumor, publication or event.
(qr) The Company will cause each of its directors and executive officers set forth on Annex G hereto to execute and deliver to the Representatives “lock-up” agreements, each substantially in the form of Annex F hereto.
(s) The Company will use its reasonable best efforts to continue to qualify as a REIT under the Code.
(t) For the fiscal year ended December 31, 2007, the Company had retained BDO ▇▇▇▇▇▇▇, LLP as its independent registered public accounting firm. In the course of its audit BDO ▇▇▇▇▇▇▇ reviewed the Company’s test procedures and conducted annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2008 fiscal year the Company has engaged BDO ▇▇▇▇▇▇▇ to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(u) Continuing through the Closing Date (and, if applicable, the Option Closing Date) the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(v) During the period beginning from the date of this Agreement and continuing through the Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably requested by or pay anyone any Investorcompensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(w) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriters of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Underwriters and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the For a period beginning of 30 days from the date of this Agreement and continuing to and including the date that is 30 days after the Closing DateAgreement, the Company will not, not without the prior written consent of the Placement AgentsUnderwriters (which may be by electronic mail), offer directly or indirectly (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, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly announce the intention to make any such offer, pledge, sale, sell contract to sell, purchase, grant, transfer, disposition or filing, or (ii) enter into any swap or other agreement to sellor transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Common Stock, whether any such swap, agreement, or otherwise dispose ofother transaction described in (i) or (ii) above is to be settled by delivery of Common Stock, any equity securities other securities, in cash or otherwise, except for (A) Common Stock issued pursuant to this Agreement, (B) Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, except (C) non-managing member units exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that such units referred to any employee stock incentive plan existing in this clause (C) are not exchangeable for Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Common Stock during such one year period), (D) Common Stock issuable upon the exchange of non-managing member units of subsidiaries of the Company outstanding on the date hereofof this Agreement or (E) registration statements filed in connection with future business combination transactions or registration statements on Form S-8 filed to register shares of Common Stock that are issuable pursuant to existing employee benefit plans of the Company.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to youthe Underwriters, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationUnderwriters.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) The Company will cause each of its directors and executive officers set forth on Annex G hereto to execute and deliver to the Underwriters “lock-up” agreements, each substantially in the form of Annex F hereto.
(q) If at any time during the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on 30-day period after the date of this Agreement, and any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the opinion of the Underwriters the market price of the Shares has been or is likely to be materially affected (ii) regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the time that confirmations are given Prospectus), the Company will, after written notice from the Underwriters advising the Company to the effect set forth above, forthwith consult with the Underwriters concerning the issuance of a press release or sentother public statement, as specified by Rule 462(b)(2)responding to or commenting on such rumor, publication or event.
(qr) The Company will execute use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2018, the Company retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and deliver conducted annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2019 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) Continuing through the Closing Date (and, if applicable, the Option Closing Date) the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably requested by or pay anyone any Investorcompensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will use its best efforts
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. 5.1 The Company Corporation covenants and agrees with the Placement Agents thatUnderwriters that it shall:
(a) The Company will timely transmit copies file with the Exchanges all required documents and pay all required filing fees, and do all things required by the rules and policies of the ProspectusExchanges, and any amendments or supplements thereto, in order to obtain prior to the SEC for filing pursuant to Rule 424(b) Closing Date the requisite acceptance or approval of the 1933 Act Rules and Regulations.Exchanges for the Offering;
(b) The Company has furnished or will deliver prior to the Placement Agents and counsel for Time of Closing on the Placement AgentsClosing Date, fulfil to the satisfaction of the Underwriters all legal requirements (including, without chargelimitation, conformed copies compliance with Applicable Securities Laws and applicable U.S. securities laws) to be fulfilled by the Corporation to permit the completion of the Registration Statement distribution of the Offered Securities as originally filed contemplated in this Agreement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein the Final Prospectus and documents incorporated or deemed to enable the Convertible Debentures and the Additional Convertible Debentures to be incorporated by reference thereindistributed free of trade restrictions in the Qualifying Jurisdictions;
(c) until the Time of Closing on the Over-Allotment Closing Date, notify the Underwriters promptly, and conformed copies of all consents and certificates of experts. The copies of confirm the Registration Statement and each amendment thereto furnished notice in writing:
(i) when any supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T Prospectus or by Rule 424(bany amended Prospectus or Supplementary Material shall have been filed;
(ii) of the 1933 Rules and Regulations. The Company will promptly notify receipt of any comments from the Placement Agents Commissions;
(iii) of any request by any of the Commissions to amend any Prospectus or of any request by the SEC to amend the Debenture Shares Registration Statement or of the issuance by the SEC of or any stop order suspending the effectiveness of the Debenture Shares Registration Statement Statement;
(iv) of the issuance by any of the Commissions or any stock exchange of any order having the effect of ceasing or suspending the distribution of the Offered Securities or the trading in the Common Shares or other securities of the Corporation, or of the institution or, to the knowledge of the Corporation, threatening of any proceedings for any such purpose; and the Corporation will use every commercially reasonable effort to prevent the issuance of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement any order ceasing or suspending the distribution of the initiation Offered Securities or threatening the trading in the Common Shares or other securities of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order Corporation and, if any stop such order is issued, to obtain the lifting revocation thereof at the earliest possible moment.time;
(cd) The Company furnish to the Underwriters, without charge:
(i) a signed copy of each Prospectus (in English and French languages) and the Debenture Shares Registration Statement (including all exhibits thereto, documents filed therewith (including photocopies of the Debenture Shares Form F-X) and amendments thereof) and an additional conformed copy of the Debenture Shares Registration Statement (without exhibits thereto); and
(ii) at any time ending at the end of the period described in Subsection 5.1(g) below, at the place or places which the Underwriters may reasonably request, the Underwriters’ reasonable requirements of the commercial copies of each Prospectus (in English and French languages as required) and such deliveries shall be made as soon as possible after the filing of such documents and, in any event, within one Business Day of such filing and the delivery will constitute the Corporation’s consent to the Underwriters use of such documents in connection with the Offering;
(e) by the act of having delivered the Prospectus and any amendments thereto to the Underwriters, have represented and warranted to the Underwriters that all material information and statements (except information and statements relating solely to the Underwriters) contained in such documents, at the respective dates of initial delivery thereof, comply with the Applicable Securities Laws of the Qualifying Jurisdictions and are true and correct in all material respects, and that such documents, at such dates, contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Corporation as required by the Applicable Securities Laws of the Qualifying Jurisdictions;
(f) during the period prior to the completion of the distribution of the Offered Securities, promptly notify the Underwriters in writing of any material change (actual or proposed) in the business, affairs, operations, assets or liabilities (contingent or otherwise) or capital of the Corporation, taken as a whole, or of any change which is of such a nature as to result in a misrepresentation in either of the Prospectus or any amendment thereto; notwithstanding Subsection 5.1(g) below, the Corporation shall not file any amendment or supplement to the Registration Statement, Prospectus or any other material supplementary to the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules all such amendments and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(bmaterial being Supplementary Material)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not have previously have been advised and furnished with a copy along with any supplementary material or to which the Placement Agents Underwriters shall have reasonably objected objected, acting reasonably, promptly after reasonable notice thereof; provided, however, that this provision shall not prohibit the Corporation from complying with its timely disclosure and other obligations under applicable securities legislation and the requirements of any relevant stock exchange arising out of any material change or change in material information, and, in addition to the foregoing, the Corporation shall, in good faith, discuss with the Underwriters any change in circumstances (actual or proposed) which is not of such a nature that there is or ought to be consideration given by the Corporation as to whether notice in compliance with writing of such change need be given to the 1933 Act Rules and Regulations; and Underwriters pursuant to this Subsection;
(g) if, at any time prior to the Company will promptly notify you after it shall have received notice thereof completion of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any distribution of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerOffered Securities, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur or condition exist as a result of whichwhich it is necessary to supplement or amend the Prospectus or the Debenture Shares Registration Statement in order that the Prospectus or the Debenture Shares Registration Statement will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or if, in the opinion of the Company Corporation, it is necessary to amend the Prospectus or the Placement AgentsDebenture Shares Registration Statement to comply with the Applicable Securities Laws or the applicable rules and regulations thereunder, and subject to Subsection 5.1(f) above, forthwith prepare, file with any Commission within any applicable time limitation and furnish to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Corporation) to which Offered Securities may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus (in the English and French languages) (to be effected, if necessary, so that the statements in the Prospectus as then so amended or supplemented would will not include any untrue statement statements 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 madewhen the Prospectus is delivered to a purchaser, not misleading or (ii) it so that the Prospectus, as amended or supplemented, will comply with applicable law and comply with any other requirements under the Applicable Securities Laws and the rules of the Exchanges and the expense of complying with this Subsection shall be necessary to amend or supplement borne by the Registration Statement or the Prospectus to comply Corporation; and concurrently with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number delivery of copies of, such an amendment or supplement to the Preliminary Prospectus and the Final Prospectus to the Underwriters, the Corporation shall deliver to the Underwriters duly executed copies of any Supplementary Material required to be filed by the Corporation in accordance with this subsection and a French Language Prospectus Opinion, and, if any financial or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to accounting information is contained in any of the Securities is required Supplementary Material, an additional Comfort Letter to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably that required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as Subsection 5.1(l) below and a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.French Language Auditors’ Opinion;
(h) During the period when a prospectus relating not to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication public announcement between the date hereof and the Over-Allotment Closing Date without first consulting with the Underwriters;
(i) prior to the completion of the Offering, allow the Underwriters to review the Prospectus and conduct all due diligence which the Underwriters may reasonably require in order to fulfil their statutory obligations as Underwriters and in order to enable them to execute, acting prudently and responsibly, the certificates required to be executed by the Underwriters in such documents, including, without limitation, all corporate and operating records, financial information (including budgets), copies of the financial statements to be incorporated by reference in the Prospectus and access to key officers of the Corporation;
(j) maintain its status as a “reporting issuer” or holding any press conferencethe equivalent not in default in each province and territory of Canada for a period of five years from the Closing Date;
(k) maintain its listing of its Common Shares on the Exchanges for a period of five years from the Closing Date;
(l) deliver to the Underwriters and their legal counsel, andas applicable:
(i) at the time of execution of the Final Prospectus by the Underwriters, a long form comfort letter (the “Comfort Letter”) of the Corporation’s auditors and to the extent required, the Corporation’s former auditors, addressed to the Underwriters and to the directors of the Corporation and dated as of the date of the Final Prospectus, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the verification of the financial information and accounting data contained in the Preliminary Prospectus and the Final Prospectus, and to such other matters as the Underwriters may reasonably require;
(ii) at the time of execution of the Final Prospectus, a favourable legal opinion (the “French Language Prospectus Opinion”) of the Corporation’s counsel, or such counsel’s Québec agent, addressed to the Underwriters and their legal counsel and dated as of the date of the Final Prospectus, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably to the effect that the French language versions of each of the Prospectus, together with each document incorporated for reference therein (other than financial statements and other financial data contained therein covered by the French Language Auditors’ Opinion), is in all material respects a complete and proper translation of the English version thereof;
(iii) at the time of execution of the Final Prospectus, a favourable opinion (the “French Language Auditors’ Opinion”) of the Corporation’s auditors and to the extent required, the Corporation’s former auditors, addressed to the Underwriters and their legal counsel and dated as of the date of the Final Prospectus, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, to the effect that the financial statements and other financial data contained or incorporated by reference in the French language versions of the Prospectus, is in all material respects a complete and proper translation of the English version thereof;
(iv) at the Time of Closing on the Closing Date, a long form comfort letter (“Bring Down Comfort Letter”) of the Corporation’s auditors and to the extent required the Corporation’s former auditors, addressed to the Underwriters and dated as of the Closing Date in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, bringing forward to the Closing Date the information contained in the Comfort Letter, and addressing such other matters as the Underwriters may reasonably practicablerequire;
(v) at the Time of Closing on the Closing Date, favourable legal opinions (the “Legal Opinions”) of the Corporation’s various legal counsel (excluding U.S. legal counsel), addressed to the Underwriters and their legal counsel and dated as of the Closing Date, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the Final Prospectus including the disclosure therein under the heading “Certain Canadian Federal Income Tax Considerations” and “Eligibility for Investment”, the Company will permit you issuance, trade and distribution of the Convertible Debentures, Additional Convertible Debentures and Debenture Shares, as applicable, without restriction, in the Qualifying Jurisdictions, corporate status, corporate authority and capacity, qualification to comment carry on any press release or business, enforceability, legal compliance, issued capital, listing, tax matters, litigation matters, compliance with Quebec language laws, compliance with JSE requirements, and to such other communicationmatters as the Underwriters may require, acting reasonably.
(nvi) The Company will use its reasonable best efforts to obtain approval forat the Time of Closing on the Closing Date, and maintain the quotation a favourable legal opinion of the Shares Corporation’s U.S. legal counsel (the “U.S. Legal Opinion”), addressed to the Underwriters and their legal counsel and dated as of the Investor Warrant Shares on The Nasdaq SmallCap Market.Closing Date, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the matters set forth in Schedule F.
(ovii) The Company at the Time of Closing on the Closing Date, a favourable legal opinion of the Corporation’s U.S. tax counsel (the “U.S. Tax Opinion”), addressed to the Underwriters and its subsidiaries will maintain their legal counsel and keep accurate books dated as of the Closing Date, in form and records reflecting content acceptable to the Underwriters and their assets legal counsel, acting reasonably, relating to the disclosure in the Prospectus under the heading “Material U.S. Federal Income Tax Considerations”;
(viii) at the Time of Closing on the Closing Date the Underwriters shall have received favourable legal opinions (the “Corporate Opinions”) from foreign counsel, dated the Closing Date and maintain internal accounting controls which provide reasonable assurance that addressed to the Underwriters and their legal counsel, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, with respect to the Material Subsidiaries relating to (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation due incorporation and good standing under the laws of the Company’s consolidated financial statements applicable jurisdiction and qualification to maintain accountability for carry on business in such jurisdictions where the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely Material Subsidiaries carry on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and business; (ii) the time that confirmations are given issued and outstanding share capital; (iii) the ownership of the issued and outstanding shares; (iv) corporate authority, capacity and enforceability of the guarantee; and (v) such other matters as the Underwriters may require, acting reasonably;
(ix) at the Time of Closing on the Closing Date, favourable legal opinions of the Corporation’s U.S. and South African legal counsel, addressed to the Underwriters and their legal counsel and dated prior to or senton the Closing Date, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to title of the Hollister Project and the Burnstone Project, respectively, as specified by Rule 462(b)(2well as the Corporation’s ability to conduct the activities it is presently and anticipated to be conducting in respect thereof and its compliance with standards required to be met (now or in the future) in respect of black economic empowerment legislation and policies in order to convert prospecting and mining rights and otherwise benefit from such rights in the future (the “Title Opinions”).;
(qx) The Company will execute at the Time of Closing on the Closing Date, a certificate (the “Officers’ Certificate”) of the Corporation by its Chief Executive Officer and deliver any stock purchase agreement reasonably requested by any Investor.Chief Financial Officer, addressed to the Underwriters and their legal counsel and dated as of the Closing Date, in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the content of the Final Prospectus, the representations, warranties and covenants in this Agreement, ownership of the Corporation’s material mineral properties and surface rights overlying such properties, and to the issuance, trade and distribution of the Convertible Debentures, Additional Convertible Debentures and Debenture Shares and to such other matters as the Underwriters may require, acting reasonably, including, without limitation, with respect to the resolutions of the board of the Corporation relating to the Offering and the incumbency and specimen signatures of signing officers; and
(xi) at the Time of Closing on the Closing Date, such other materials (the “Closing Materials”) as the Underwriters and their legal counsel may require, acting reasonably, and as are c
Appears in 1 contract
Additional Covenants. The Company covenants Between the date hereof and agrees the Closing Date, Soft Plus shall, and the Principal Shareholders shall cause Soft Plus to:
8.7.1 Deliver the relevant Stock Option Plan to each Employee of Soft Plus;
8.7.2 As of the Closing Date, terminate all employment agreements with the Placement Agents that:Principal Shareholders;
(a) The Company will timely transmit copies of 8.7.3 Unless the Prospectusparties otherwise agree, take such actions, file such documents and any amendments amendments, redeploy or supplements theretorelocate and/or otherwise do all things necessary and appropriate to comply with applicable laws, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules rules, regulations and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus policies relating to the Securities filed pursuant to Rule 424(b) employment, engagement and/or deployment of the 1933 Act Rules Employees of Soft Plus and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing subsidiaries in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) IfUnited States or elsewhere, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, other persons (i) any event relating to who have rendered, are rendering, or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, will render services for Soft Plus and its Subsidiaries in the opinion of the Company or the Placement AgentsUnited States and elsewhere, 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, not misleading or (ii) it shall be necessary who have contracted to amend or supplement the Registration Statement or the Prospectus to comply render services on behalf of Soft Plus and its Subsidiaries in United States and elsewhere, including without limitation, filing H-1B petitions with the 1933 ActImmigration Service containing, among other matters, a statement as to where each Employee will be employed, amending H1 petitions for those Employees not at the 1933 Act Rules sites indicated on the original petition and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file processing new labor condition applications with the SEC, and furnish to the Placement Agents a reasonable number Department of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsLabor; provided, however, that the Company shall not be required Persons whose activities as they relate to qualify Soft Plus as a foreign corporation or shall be required to qualify as a dealer described above in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) constitute "Employees" for purposes of this Section 8.7.3 regardless of the time that confirmations are given internal classification by Soft Plus or sentits Subsidiaries of such Persons;
8.7.4 File all notices and fulfill all requirements necessary and appropriate to comply with applicable California securities laws relating to issuance of shares of the Common Stock or Preferred Stock of Soft Plus, as specified by Rule 462(b)(2)or any right to acquire such shares;
8.7.5 Take such actions, file such documents and amendments and otherwise do all things necessary and appropriate, including without limitation, filing an Application for Removal of Conditions, to cause the restrictions imposed on the transfer of certain of the of shares of the Common Stock or Preferred Stock of Soft Plus, or any right to acquire such shares, to be removed; and
8.7.6 Use its good faith best efforts to take all reasonable steps to distribute to each of the Employees of Soft Plus and each of its Subsidiaries other than the Principal Shareholders and obtain from each such Employee and executed copy of USI's standard Non-Disclosure, Assignment of Developments, Non-Solicitation and Non-Competition Agreement in the form of Exhibit N - 2 attached hereto.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants Partnership Entities jointly and agrees severally covenant and agree with the Placement Agents Underwriters that:
(a) The Company Partnership will timely transmit copies of the ProspectusProspectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 6), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulationsor, if applicable, Rule 430A(a)(3).
(b) The Company has furnished or Partnership will deliver to the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Disclosure Package, the Prospectus and certificates any Issuer Free Writing Prospectus, and any amendment or supplement thereto, as the Underwriters may reasonably request; the Partnership will promptly advise the Underwriters when the Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the SEC; if there is a post-effective amendment to the Registration Statement that is not effective under the Act, the Partnership will use its commercially reasonable efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best commercially reasonable efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus or any Rule 462(b) Registration Statement (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed on it by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in forceAct, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(e) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which (i) the Disclosure Package or any Issuer Free Writing Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading or (ii) any Issuer Free Writing Prospectus would conflict with the information in the Registration Statement or the Prospectus, the Partnership will (A) notify promptly the Underwriters so that any use of the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, may cease until it is amended or supplemented; (B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, to correct such statement, omission or conflict; and (C) supply any such amendment or supplement to the Underwriters in such quantities as they may reasonably request.
(f) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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 mademade or the circumstances then prevailing, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the Exchange Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECSEC (subject to Section 6(c) of this Agreement), and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise reasonably cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to securities, file a general consent to service of process under the laws of any jurisdiction, or subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company The Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158complying with Section 11(a) of the Registration StatementAct and the rules and regulations of the Commission thereunder (including, at the option of the Partnership, Rule 158).
(hi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
. The Partnership will, for a period of two (i2) During the period beginning years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available to the Company Underwriters via the Commission's Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the Act or the Exchange Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in the Partnership's financial statements. Any report, document or other information required to be furnished, delivered or made available under this paragraph (i) shall be furnished, delivered or made available as soon as practicable after such report, document or information becomes publicly available.
(j) The Abraxas Parties will not, during the 180 days after the date of the Prospectus, without the prior written consent of the Placement AgentsWachovia Capital Markets, LLC, directly or indirectly, (1) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than Common Units issued (a) pursuant to employee benefit plans, qualified unit option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (b) to affiliates, but only to the extent that such affiliates agree to be bound by the terms of this paragraph, (c) in connection with acquisitions of assets or businesses in which Common Units are issued as consideration or are issued in order to pay the cash portion of any equity securities of the Companyconsideration in such an acquisition or to repay any indebtedness incurred in connection with such an acquisition, except for the Securities; provided, however, provided that the Company may issuesuch acquisition results in an increase in available cash per unit on a pro forma basis, or (d) the Option Units) or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options to purchase, shares of Common Stock pursuant to any employee stock incentive plan 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (m) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with NASD Rule 2711, if (1) during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this paragraph (j) and the letters referred to in paragraph (m) below shall continue to apply until the expiration of the 18-day period beginning on the issuance of such earnings release or the occurrence of such material news or material event.
(jk) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “"Use of Proceeds” " in the ProspectusRegistration Statement, which description complies in all respects the Disclosure Package and the Prospectus and will file with the requirements of Item 504 of Regulation SSEC such information on Form 10-K.K or Form 10-Q as may be required by Rule 463.
(kl) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceAct.
(m) Except as required by lawThe Abraxas Parties will cause (i) each of the Private Investors, other than the Selling Unitholder, to furnish to the Underwriters, on or prior to the Closing DateExecution Time, a letter in the Company will issue no press release or other communicationform of Exhibit C and (ii) the directors and officers of the General Partner and Abraxas, directly or indirectly, and will hold no press conferences with respect to furnish to the Company Underwriters, on or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conferencethe Execution Time, and, to a letter in the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.form of Exhibit D.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act), the Company Partnership shall both file an Abbreviated a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(o) It is understood that up to 100,000 of the Firm Units (the "Directed Units") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and persons having business relationships with the Abraxas Parties ("Directed Unit Participants") upon the terms and conditions set forth in the Registration Statement, the Disclosure Package and the Prospectus (the "Directed Unit Program") and in accordance with the rules and regulations of the NASD and that any allocation of such Directed Units among such persons will be made in accordance with timely directions received by Wachovia Capital Markets, LLC from the Partnership. Under no circumstances will Wachovia Capital Markets, LLC or any Underwriter be liable to any Abraxas Parties or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the public offering contemplated hereby.
(p) The Underwriters covenant and agree with the Partnership that unless they have obtained or will obtain, as the case may be, the prior written consent of the Partnership, they have not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any Free Writing Prospectus consented to by the Underwriters is hereinafter referred to as a "Permitted Free Writing Prospectus." The Selling Unitholder agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(q) The Company No Partnership Entity will execute and deliver take, directly or indirectly, any stock purchase agreement action that is designed to or that has constituted or that could reasonably requested by be expected to cause or result in the stabilization or manipulation of the price of any Investorsecurity of the Partnership to facilitate the sale or resale of the Firm Units.
Appears in 1 contract
Sources: Underwriting Agreement (Abraxas Energy Partners LP)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders and to holders of the SecuritiesShareholders, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 17 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities and Exchange Act of 1934, as amended. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of or operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is , except as may be required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the shares on the Nasdaq National Market System (the "NNM") or a substantially comparable national securities exchange or trading system.
(m) For a period of 180 days from the Effective Date, the Company will not, and will use its best efforts to cause its directors and officers to not, directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock or rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and except for sales of shares of Common Stock to the Investor Warrant Company's employees pursuant to the exercise of options described in the Prospectus under the Company's stock option plans.
(n) For a period of 180 days from the Effective Date, the Selling Shareholders will not directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock or rights to acquire such shares without your prior written consent, except for the Shares on The Nasdaq SmallCap Marketsold hereunder.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated 's financial statements and to maintain accountability for the assets of the Company and its subsidiariesCompany, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. A. The Company covenants and ENGINEER agrees with to provide in active charge of this PROJECT for the Placement Agents that:
(a) The Company will timely transmit copies life of the Prospectuscontract a Project Engineer who is a permanent employee of the ENGINEER and who is a “qualified sanitary engineer” as defined under the DIVISION'S “Rules and Regulations for the Prequalification of Consulting Engineers.” The Project Engineer shall be* (name and address) Any proposed change in identity of the Project Engineer on the PROJECT shall first be approved by the DIVISION before transfer of responsibility is made. Failure of the Project Engineer to administer the PROJECT to the satisfaction of the OWNER and/or DIVISION is deemed sufficient basis for his removal and replacement.
B. The ENGINEER agrees to be solely responsible for all bills or claims for payment for services rendered by others and for all services and materials employed in his work, and any amendments or supplements thereto, to indemnify and save harmless the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and fromOWNER, and all documents issued the OWNER'S officers, agents and employees against all suits, claims or liability of every name and nature arising out of or in consequence of the negligent acts or failures to act of the ENGINEER or others employed by him in the performance of the work covered by this AGREEMENT.
C. The ENGINEER further agrees to procure and bymaintain at his expense such workmen's compensation insurance as is required by the statutes and public liability insurance in amounts adequate to provide reasonable protection from claims for bodily injury, death or property damage which may arise from his performance and the performance of his employees under this AGREEMENT.
D. All documents, including original drawings, design calculations, work sheets, field notes, estimates, and other data shall remain the property of the OWNER; they shall be transmitted to the OWNER in clean and orderly condition on demand by the OWNER; however, these may be left in the possession of the ENGINEER at the OWNER'S discretion.
▇. The ENGINEER shall not sublet, assign or transfer any part of the ENGINEER's services or obligations (except special services) under this AGREEMENT without the prior approval and written consent of the OWNER, and the contract shall be binding upon and inure to the benefit of the parties, their successors and assigns.
F. It is further agreed that before any construction is undertaken the ENGINEER will assist the OWNER or his authorized agent in providing the DIVISION with clear documentation certifying that the purchases of land have been secured to provide for location of the treatment works and other associated structures and equipment as shown on the construction plans or described in the specifications. Similar documentation shall be submitted on approvals from the State Highway Department regarding location of the treatment works and other project related facilities within rights-of-way and other lands under its jurisdiction.
G. The ENGINEER also agrees to provide in active residence and full time control at the site of the pro- posed construction a DIVISION approved registered civil engineer and DIVISION approved inspectors (full time, part time) as needed with the experience and other approved background to assist the ENGINEER in the work of General Administration and to assure contractor’s conformance with the plans and specifications and any approved coincident or subsequent changes or change orders related to the PROJECT. The resident registered engineer for the life of this contract shall be (Name and Address) (Append resume describing Candidate’s qualifications) Any Proposed change in the identity of the resident engineer on this PROJECT must first be approved by the DIVISION before transfer of responsibility is made. Additionally, if it is found by the DIVISION that a resident engineer (or inspector) cannot or will not administer the PROJECT in a manner satisfactory to the DIVISION, the SEC in connection ENGINEER agrees to replace him promptly upon receipt of a written request from the DIVISION with a qualified resident engineer who will acceptably administer the registration PROJECT. It is further agreed that failure of the Securities under ENGINEER to abide by the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year above covenant is sufficient cause for removal from the date DIVISION’S Roster of the ProspectusPrequalified Engineers.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Contract for Professional Services
Additional Covenants. The Company covenants Inergy Parties covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or Partnership will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Partnership will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the SecuritiesUnits, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During The Partnership, New Propane and the period beginning from General Partners will not, during the 180 days after the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will notprospectus, without the prior written consent of the Placement Agents▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., directly or indirectly, offer for sale, sell or enter into any agreement contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose ofof any Common Units, any equity securities convertible into, or exercisable or exchangeable for, Common Units or any other rights to acquire such Common Units, other than pursuant to employee benefit plans as in existence as of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares date of Common Stock pursuant to any employee stock incentive plan existing on the date hereofthis prospectus.
(j) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.K and will file such reports with the SEC with respect to the sale of the Units and the application of the proceeds therefrom as may be required by the 1933 Act or the 1934 Act or by the applicable rules and regulations thereunder.
(k) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing DateDate (and, if applicable, the Company Option Closing Date), the Partnership will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Partnership Group for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Company Option Closing Date), the Partnership will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company Partnership or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company Partnership or any of its subsidiaries, or the offering of the SecuritiesUnits, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on Units on, The Nasdaq SmallCap National Market.
(o) The Company Partnership will cause its directors and its subsidiaries will maintain officers and keep accurate books the persons and records reflecting their assets entities listed on Schedule II to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary substance satisfactory to permit the preparation of the Company’s consolidated financial statements and to maintain accountability counsel for the assets Underwriters, pursuant to which each such person shall agree not to directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any Common Units, Senior Subordinated Units, Junior Subordinated Units, or any securities convertible into, or exercisable or exchangeable for, Common Units or any other rights to acquire such Common Units, during the Company and its subsidiaries180 days after the date of this prospectus, (iii) access to without the assets prior written consent of the Company and its subsidiaries is permitted only in accordance with management’s authorization▇.▇. ▇▇▇▇▇▇▇ & Sons, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.Inc.
(p) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of of
(i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Inergy L P)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Stockholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) one (1) signed copy of the Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents documents incorporated by reference therein) as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best commercially reasonable efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the reasonable opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by registered independent public accountants auditors and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) ninety (90) days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; Shares. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to any currently existing employee benefit plans of the Company, (D) any shares of Common Stock issued pursuant to any currently existing compensatory stock plan of the Company [or (E) shares of Common Stock sold to partners, vendors, manufacturers, distributors, customers, or other similar parties pursuant to a strategic alliance or collaboration at a price greater than or equal to the then market price of the Company's Common Stock, provided, however, that in the Company may issuecase of subclause (E) above, or grant options to purchase, shares the recipients of such Common Stock pursuant agree to any employee stock incentive plan existing on be bound by the date hereofrestrictions of this Section 5(i)].
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all material respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been preparedprepared and made publicly available, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any quarterly or annual periods subsequent to the quarterly or annual periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Stockholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In consent [other than product related press releases made in the event that any such disclosure is required by law, the Company will promptly notify you normal course of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationbusiness consistent with past practices].
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company Each of the Selling Stockholders severally agrees with the several Underwriters as follows:
(i) Such Selling Stockholder will execute cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Stockholder will pay all Federal and deliver other taxes, if any, on the transfer or sale of the Shares being sold by the Selling Stockholder to the Underwriters.
(iii) Such Selling Stockholder will do or perform all things required to be done or performed by the Selling Stockholder prior to the Closing Date or any stock purchase agreement Option Closing Date, as the case may be, to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
(iv) Except as stated in this Agreement and in the Preliminary Prospectus and the Prospectus, such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(v) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, within the period of time referred to in Section 5(d) hereof, of any Investorchange in the Company's condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow or of any change in information relating to such Selling Stockholder or the Company or any new information relating to the Company or relating to any matter stated in the Prospectus or any amendment or supplement thereto which comes to the attention of such Selling Stockholder that suggests that any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, if amended or supplemented) is or may be untrue in any material respect or that the Registration Statement or Prospectus (as then amended or supplemented, if amended or supplemented) omits or may omit to state a material fact or a fact necessary to be stated therein in order to make the statements therein not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented, if amended or supplemented) in order to comply with the 1933 Act or any other law.
Appears in 1 contract
Sources: Underwriting Agreement (Catalyst Semiconductor Inc)
Additional Covenants. (a) The Company covenants Suburban Parties jointly and agrees severally covenant and agree with the Placement Agents several Underwriters that:
(ai) The Company Partnership will (A) timely transmit copies of the ProspectusPreliminary Prospectus and the Final Prospectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC Commission for filing pursuant to Rule 424(b), and (B) timely transmit copies of any Issuer Free Writing Prospectus in a form approved by the 1933 Act Rules and RegulationsUnderwriters to the Commission for filing pursuant to Rule 433.
(bii) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters and to counsel for the Placement Agents, without charge, conformed copies Underwriters (A) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, and of any amendments and supplements to the Registration Statement and (B) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Final Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to Preliminary Prospectus or the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Final Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement the Final Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or Issuer Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations Regulations) that differs from the Final Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus becomes effective or when any supplement to the Basic Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (iA) any event relating to or affecting the Company Partnership Entities or of which the Company Partnership shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading or (iiB) it shall be necessary to amend or supplement the Registration Statement or the Final Prospectus or to file a new registration statement, in each case, to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith Partnership promptly will, at its expense expense, (w) notify the Representatives of any such event or non-compliance, (x) prepare and file with the SECCommission, and furnish subject to the Placement Agents a reasonable number of copies ofSection 5(a)(iii), such an amendment or supplement or other filing new registration statement that will correct such statement or omission or effect such compliance, (y) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in the use of the Final Prospectus and (z) supply any supplemented Final Prospectus to the Underwriters in such quantities as the Representatives may reasonably request.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to (A) qualify as a foreign corporation limited partnership or shall be required to qualify as a dealer in securities or in any such jurisdiction where it would not otherwise be required to so qualify, (B) file a any general consent to service of process under the laws of in any jurisdictionsuch jurisdiction or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations158, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available to its security holders quarterly reports containing financial statements and financial information which that may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriters via the Commission’s Electronic Data Gathering, Analysis, and Retrieval (“▇▇▇▇▇”) system or the Partnership’s web site a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements. The Representatives will be directed to access the ▇▇▇▇▇ system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Partnership of such reports to the Representatives in compliance with the provisions of this Section 5(a)(viii). The Representatives shall have no duty to search for or obtain any electronic or other filings that the Partnership makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.
(iix) During the The Suburban Parties will not, for a period beginning of 45 days from the date of the Final Prospectus, directly or indirectly, (A) offer for sale, contract to sell, sell, pledge, hypothecate, distribute, announce the intention to sell 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 Units held by such person or securities convertible into or exchangeable for Common Units held by such person, or sell or grant options, rights or warrants with respect to any Common Units held by such person or securities convertible into or exchangeable for Common Units held by such person, (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 Units, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Units held by them or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units (other than (i) any registration statement on Form S-8 or (ii) as otherwise excepted from this Agreement lock-up provision) or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of ▇▇▇▇▇ Fargo Securities, LLC; provided, however, that the foregoing restrictions do not apply to (1) issuances of Common Units pursuant to any existing employee benefit plans or (2) issuances of Common Units pursuant to the Underwriters’ option to purchase the Option Units; and continuing the executive officers and Supervisors of the Partnership shall furnish to and including the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (x) offer for sale, contract to sell, sell, pledge, hypothecate, distribute, announce the intention to sell 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 Units or securities convertible into or exchangeable for Common Units, or sell or grant options, rights or warrants with respect to any Common Units held by such person or securities convertible into or exchangeable for Common Units held by such person or (y) 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 Units, whether any such transaction described in clause (x) or (y) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, or (z) publicly disclose the intention to do any of the foregoing, in each case for a period of 45 days from the date that is 30 days after of the Closing Date, the Company will notFinal Prospectus, without the prior written consent of the Placement Agents▇▇▇▇▇ Fargo Securities, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofLLC.
(jx) The Company Partnership will apply the net proceeds received from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNYSE.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, it has not made and its subsidiaries will maintain not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance any electronic road show. The Partnership agrees that (iA) transactions are executed in accordance with management’s authorizationit has treated and will treat, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariescase may be, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, each Issuer Free Writing Prospectus as an Issuer Free Writing Prospectus and (ivB) it has complied and will comply, as the recorded accounts case may be, with the requirements of Rules 164 and 433 applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the assets of the Company Commission, legending and its subsidiaries are compared with existing assets at reasonable intervalsrecord keeping.
(pxiv) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, the Partnership will promptly (A) notify the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, (B) subject to Section 5(a)(iii), amend or supplement the Disclosure Package to correct such statement or omission and (C) supply any amendment or supplement to the Underwriters in such quantities as the Representatives may reasonably request.
(xv) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act), the Company Partnership shall both file an Abbreviated Registration Statement with the SEC Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (iA) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, Agreement and (iiB) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company Each of the Underwriters, severally but not jointly, covenant and agree with the Partnership that, unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and any Investorelectronic road show.
Appears in 1 contract
Sources: Underwriting Agreement (Suburban Propane Partners Lp)
Additional Covenants. The Company covenants and agrees the Operating Partnership, jointly and severally, covenant and agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives upon request, and to counsel for the Placement Agents, without charge, Underwriters (i) a conformed copies copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a conformed copy of each amendment thereto (including exhibits consent and certificate included, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, Shares of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any such amendment to the Registration Statement becomes effective or when any such supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and Act, the 1933 Act Rules and Regulations, as now the 1934 Act and hereafter amended, the 1934 Act Rules and by the rules and regulations of the SEC thereunder, as from time to time in forceRegulations, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file (subject to Section 5(c)) with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or 1934 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or the 1934 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of three years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with an securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any direct or indirect significant subsidiaries of the Company, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.K and will file such reports with the SEC with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by the 1933 Act or the 1934 Act or by the applicable rules and regulations thereunder.
(kj) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating Act.
(k) Prior to any documents incorporated by reference into the Registration Statement or Closing Date (and, if applicable, the Prospectus which Option Closing Date), the Company files will not issue any press releases or other communications directly or indirectly and will hold no press conferences with the SEC at any time until the expiration of one year from the date respect to offering of the ProspectusShares, without your prior written consent, which consent will not be unreasonably withheld.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceStatement.
(m) Except as required by law, prior to the Closing Date, the The Company will issue no press release or other communication, directly or indirectly, use its best efforts to obtain approval for and will hold no press conferences with respect to maintain the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities listing of the Company or any of its subsidiaries, or Shares on the offering of New York Stock Exchange within the Securities, without your prior written consent. In time period described in the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationProspectus.
(n) The Company will use its reasonable best efforts not, directly or indirectly, offer for sale, contract to obtain approval sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any Preferred Shares, or any other capital stock ranking on a parity with or senior to the Preferred Shares (“Parity Shares”), any securities convertible into, or exercisable or exchangeable for, and maintain Preferred Shares or Parity Shares or any other rights to acquire Preferred Shares or Parity Shares, for a period of 90 days from the quotation date of the Prospectus, without the prior written consent of the Representatives, except for the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Marketsold hereunder.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls over financial reporting which provide reasonable assurance that (ia) transactions are executed in accordance with management’s authorization, authorizations; (iib) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, ; (iiic) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, ; and (ivd) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York, New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Preferred Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(r) The Company will execute have engaged, prior to the Closing Date, Wachovia Bank, N.A., or another institution reasonably satisfactory to the Representatives, to act as transfer agent and deliver registrar for the Shares following the Closing Date.
(s) The Company will use its best efforts to meet the requirements to continue to qualify as a real estate investment trust under the Code, unless otherwise determined by the Company’s Board of Directors.
(t) The Company and the Operating Partnership will cooperate with the applicable Contributors (hereinafter defined) and on or before January 31, 2006 will consummate the purchase of the remaining 51% of the interests in RiverCenter Hotel Limited Partnership, the entity which holds the Embassy Suites Hotel Cincinnati-RiverCenter, not held by the Company and its subsidiaries on the Closing Date, as described in the Prospectus, in accordance with the terms and conditions of the applicable Contribution Agreement; provided that the Representatives may release the Company from its obligation hereunder in the event that the Independent Directors (hereinafter defined) determine in good faith that such purchase is not in the best interests of the Company.
(u) The Company will comply with all provisions of any stock purchase agreement reasonably requested by any Investorundertakings in the Registration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Eagle Hospitality Properties Trust, Inc.)
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Notes for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Notes; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Notes filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Notes by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Notes during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Notes is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesNotes, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇. The ▇▇e Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 ▇▇▇. ▇▇e Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the period beginning from the date of this Agreement and continuing to hereof through and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for saleoffer, sell or enter into any agreement to sell, contract to sell or otherwise dispose of, of any equity debt securities of the Company, except for the Securities; provided, however, that issued or guaranteed by the Company may issue, or grant options to purchase, shares and having a tenor of Common Stock pursuant to any employee stock incentive plan existing on the date hereofmore than one year.
(j) The Company will apply the proceeds from the sale of the Securities Notes as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Notes under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date, the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date, the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesNotes, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationRepresentatives.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market[Reserved.]
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If [Reserved.]
(q) [Reserved.]
(r) The Company will use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2012, the Company elects retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and conducted annual compliance reviews designed to rely on Rule 462(bdetermine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2013 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) under Continuing through the 1933 Closing Date the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date, the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Notes other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(w) If so requested by the Representatives, the Company shall both file cause to be prepared and delivered, at its expense, by the Applicable Time, to the Representatives an Abbreviated Registration Statement “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of the Notes. As used herein, the term “electronic Prospectus” means a form of the most recent Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Notes, (ii) it shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, as the case may be; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally). The Company hereby confirms that, if so requested by the Representatives, it has included or will include in the Prospectus filed with the SEC an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus to such investor or representative.
(x) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of 405 under the 1933 Act Rules and Regulations; any such free writing prospectus the use of which has been consented to by the earlier of (i) 9:00 p.m., St. Louis time, Representatives is listed on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Schedule II hereto.
(qy) The Company has complied and will execute comply with the requirements of Rule 433 under the 1933 Act Rules and deliver Regulations applicable to any stock purchase agreement reasonably requested by Issuer Free Writing Prospectus, including timely filing with the SEC or retention where required and legending; the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the 1933 Act Rules and Regulations to avoid a requirement to file with the SEC any Investorelectronic road show.
(z) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Prior to and during the period up to the Settlement Date, the Company will timely transmit copies shall advise you promptly of (i) the occurrence of any event or the discovery of any fact that could reasonably be expected to cause or that causes the Company to fail to commence, withdraw, rescind or terminate any Exchange Offers or could reasonably be expected to permit the Company to exercise any right not to exchange New Securities for Old Securities exchanged thereunder, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which could reasonably be expected to require the making of any change in the Exchange Offer Materials or could reasonably be expected to cause a representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) any proposal or requirement to modify, amend or supplement any of the ProspectusExchange Offer Materials, and (iv) the issuance of any amendments comments or supplements theretoorder or the taking of any other action by the Commission, to any other securities commission or other similar authority, any stock exchange on which the SEC for filing pursuant to Rule 424(b) securities of the 1933 Act Rules and Regulations.
Company or Petrobras are listed (bcollectively, “Other Regulatory Authorities”) The Company has furnished or any administrative or judicial tribunal or other governmental agency or instrumentality concerning the Exchange Offers (and, if in writing, will deliver to furnish you a copy thereof), (v) the Placement Agents and counsel for the Placement Agents, without charge, conformed copies commencement or threat in writing of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith any lawsuit or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed government proceeding in connection with the Commission pursuant to ▇▇▇▇▇Exchange Offers, except to the extent permitted by Regulation S-T or by Rule 424(b(vi) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus Exchange Prospectus or preliminary prospectus supplement or any of the initiation Exchange Offer Materials, (vii) any request by the Commission to amend or threatening of supplement the Registration Statement, the Exchange Prospectus or the other Exchange Offer Materials or for additional information and (viii) any proceedings for any of such purposesother information relating to the Exchange Offers that you may from time to time reasonably request. The Company will use its best efforts and Petrobras agree to prevent provide the issuance Dealer Managers with reasonable access to the officers, directors, accountants, counsel, consultants and other appropriate agents and representatives of any stop order andthe Company and Petrobras.
(b) The Company and you each agree to keep the other reasonably informed as to the progress of the Exchange Offers during the pendency thereof, if any stop order is issued, including providing information as to obtain the lifting thereof at number and amount of New Securities that have been exchanged for Old Securities pursuant to the earliest possible momentExchange Offers.
(c) The Company Company, Petrobras and the Dealer Managers will not file any amendment or supplement to the Registration Statementcomply with all applicable requirements of law, the Prospectus including, without limitation, (or any other prospectus relating to the Securities filed pursuant to Rule 424(bi) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before and the termination rules and regulations promulgated thereunder (other than, in the case of the offering of Company and Petrobras, broker-dealer regulations), and the various state securities or “blue sky” laws, and (ii) Other Applicable Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the ProspectusLaws, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance each case in connection with the 1933 Act Rules and Regulations; Exchange Offers and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filedother matters contemplated thereby and by this Agreement.
(d) During The Company and Petrobras agree that at all times subsequent to the period when a prospectus relating to any of date hereof up until the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealerSettlement Date, the Company Exchange Offer Materials will comply, at its own expense, comply with all applicable requirements imposed by the 1933 Act of law and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, the Prospectus as then amended or supplemented would include Exchange Offer Materials will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided that notwithstanding the foregoing, if at any time during the period of the Exchange Offer any event shall occur or condition shall exist as a result of which the Exchange Offer Materials will not comply in all material respects with all applicable requirements of law, or such Exchange Offer Materials will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, then the Company and Petrobras shall either (i) promptly prepare such amendment or supplement to the Exchange Offer Materials as may be necessary in order to correct such false or misleading statement or omission, and take such action to make the Exchange Offer Materials comply with the requirements of law, and provide copies of such amendment or supplement to the Dealer Managers for distribution to the holders of Old Securities if it shall be necessary or desirable to so distribute such amendment or supplement to comply with the requirements of law, or (ii) it shall withdraw from, cancel, rescind or otherwise terminate the Exchange Offers.
(e) The Company will disseminate, as required, any and all necessary amendments and supplements to any documents to be necessary to amend filed or supplement the Registration Statement or the Prospectus to comply furnished with the 1933 ActCommission, Other Regulatory Authorities or any other agency including the 1933 Act Rules LSE, or to be distributed to the holders of the Old Securities relating to the Exchange Offers and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and promptly furnish to the Placement Agents a reasonable number you true and complete copies of copies of, each such amendment or and supplement or other filing that will correct such statement or omission or effect such complianceprior to the distribution thereof.
(f) During The Company will commence the period when Exchange Offers as soon as practicable by issuing a prospectus press release or notice required pursuant to the terms of the indentures relating to any the Old Securities or the rules of the Securities is required LSE, distributing or causing to be delivered under distributed, mailing or causing to be mailed on its behalf copies of the 1933 Act by Exchange Prospectus and any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws other Exchange Offer Materials to each holder of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdictionOld Securities.
(g) In accordance with Section 11(a) of the 1933 Act The Company and Rule 158 of the 1933 Act Rules and Regulations, the Company Petrobras will make generally available use all commercially reasonable efforts to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of cause the Registration StatementStatement and any post-effective amendments thereto to promptly become effective.
(h) During In connection with the period when a prospectus relating to any of the Securities is required services to be delivered under the 1933 Act provided by any Placement Agents or dealeryou hereunder, the Company will file promptly and Petrobras agree to furnish you and your counsel with all documents required information concerning the Company that you reasonably deem appropriate and agrees to be filed provide you with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish reasonable access to its security holders annual reports containing financial statements audited by independent public accountants officers, directors, accountants, counsel, consultants and quarterly reports containing financial statements other appropriate agents and financial information which may be unauditedrepresentatives.
(i) During Neither the period beginning from the date of this Agreement and continuing to and including the date Company nor Petrobras will take, directly or indirectly, any action that is 30 days after designed to cause or result, or which might reasonably be expected to cause or result, under the Closing Date1934 Act or otherwise, the Company will not, without the prior written consent in stabilization or manipulation of the Placement Agents, offer price of any securities to facilitate the exchange of New Securities for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of Old Securities in the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofExchange Offers.
(j) The Prior to the Settlement Date, neither the Company nor Petrobras will, or will apply the proceeds from the sale permit any of the Securities as set forth in the description under “Use of Proceeds” in the Prospectustheir affiliates to, which description complies in all respects with the requirements of Item 504 of Regulation S-K.acquire any New Notes.
(k) The Company and Petrobras will promptly provide you with copies of all correspondence to pay any stamp, issue, registration, transaction or similar documentary taxes and fromduties, including interest and all documents issued to and bypenalties, the SEC payable on or in connection with the registration creation, issue and offering of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement New Securities, or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date execution or delivery of the Prospectus.
(l) Prior to Exchange Offer Materials or the Closing Date, enforcement by the Company will furnish to you, as soon as they have been prepared, copies Dealer Managers of any unaudited interim consolidated financial statements of this Agreement against the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company Petrobras or any transaction carried out pursuant to this Agreement; and, in addition to any amount payable by it under this Agreement, any value-added, turnover or similar tax payable in respect of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that amount (and references in this Agreement to such amount shall be deemed to include any such disclosure is required by law, the Company will promptly notify you taxes so payable in addition to it and express mention of such required disclosure prior to issuing payment of any press release or other communication or holding taxes (if applicable) in any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on provisions hereof shall not be construed as excluding such payment of any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed taxes in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of those provisions hereof where such express mention is not made); the Company and its subsidiariesPetrobras will indemnify each Dealer Manager against any loss, liability, cost, claim, action, demand or expense (iiiincluding, but not limited to, reasonable legal fees) access which such Dealer Manager may incur or which may be made against such Dealer Manager arising out of or in relation to the assets of the Company and its subsidiaries is permitted only or in accordance connection with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsany failure to pay or delay in paying any such taxes.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Dealer Manager Agreement (Petrobras International Finance Co)
Additional Covenants. The Company covenants Inergy Parties covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Closing Date, furnish or make available to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(i) During the The Inergy Parties that own Common Units will not, for a period beginning of 90 days from the date of this Agreement the Prospectus, directly or indirectly, (i) 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 Units or securities convertible into, or exchangeable for Common Units, or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the Senior Subordinated Units and continuing the Junior Subordinated Units), or (ii) enter into any swap or other derivatives transaction that transfers to and including another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.; provided, however, that the foregoing restrictions do not apply to issuances (i) pursuant to employee benefit plans as in existence as of the date of the Prospectus or (ii) in connection with accretive acquisitions of assets or businesses pursuant to Section 5.7(b) of the Partnership Agreement in which such Common Units are issued as consideration; provided, however, that is 30 with respect to clause (i) above, any recipient of Common Units will furnish to ▇▇▇▇▇▇ Brothers Inc. a letter substantially similar to that required below and attached hereto as Exhibit B with respect to the period between the date of any such issuance and the date 90 days after the Closing Datedate of the Prospectus. Each executive officer and director of the Partnership shall furnish to the Underwriters, at or prior to the Company will notexecution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units 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 the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.▇▇▇▇▇▇ Brothers Inc.
(j) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(k) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pm) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Inergy L P)
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) one copy of the executed Registration Statement as originally filed and filed, including copies of each amendment exhibits thereto (including other than any exhibits filed therewith or incorporated by reference therein therein), of any amendments and supplements to the Registration Statement (including all documents incorporated or deemed to be incorporated by reference therein) and conformed (ii) a signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to the Underwriters as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all consents and certificates documents incorporated by reference therein) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriters of experts. The copies any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which that is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with The Company will make generally available to its securityholders and to holders of the Shares, as soon as practicable, a consolidated earnings statement (which need not be audited) of the Company and its subsidiaries that satisfies the provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the any period when in which a prospectus relating to any of the Securities Shares is required by law to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c)13, 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which that may be unaudited. The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements, to the extent such reports are prepared in the ordinary course of such subsidiary's business. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 120 days after the Closing Datedate hereof, the Company will not, without the prior written consent of the Placement Agents▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., directly or indirectly, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity shares of Common Stock, or any securities convertible into or exchangeable for shares of the CompanyCommon Stock, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock Shares and except for issuances pursuant to any the exercise of employee stock incentive plan existing options outstanding on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to youthe Underwriters, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing Date, the Company will not, without the prior consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., which consent shall not be unreasonably withheld, issue no any press release releases or other communication, public communications directly or indirectly, indirectly and will hold no press conferences with respect conferences, in each case relating to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, subsidiaries or the offering of the Securities, without your prior written consentShares. In Between the event that any such disclosure is required by lawClosing Date and the expiration of the Option Period, the Company will promptly notify you not, without the prior consent of such required disclosure prior to issuing ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., which consent shall not be unreasonably withheld, issue any non-routine press release releases or other communication public communications directly or holding any indirectly and will hold no non-routine press conferenceconferences, and, in each case relating to the extent reasonably practicablefinancial condition, results or operations, business, properties, assets or liabilities of the Company will permit you to comment on or any press release of its subsidiaries or other communicationthe offering of the Shares.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(o) The Company will cause its directors and officers to furnish to the Underwriters, on or prior to the date of this Agreement, 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, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 120 days from the date hereof, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
(p) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pq) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qr) The Company will execute and deliver not, directly or indirectly, (i) take any stock action designed to cause or result in, or that has constituted or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale or the Shares or (ii) (A) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Shares or (B) pay or agree to pay to any person any compensation for soliciting another to purchase agreement reasonably requested by any Investorother securities of the Company.
Appears in 1 contract
Additional Covenants. The Company covenants Inergy Parties covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering, issuance or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Closing Date, furnish or make available to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(i) During the The Inergy Parties that own Common Units will not, for a period beginning of 90 days from the date of this Agreement the Prospectus, directly or indirectly, (i) 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 Units or securities convertible into, or exchangeable for Common Units, or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the Senior Subordinated Units and continuing the Junior Subordinated Units), or (ii) enter into any swap or other derivatives transaction that transfers to and including another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.; provided, however, that the foregoing restrictions do not apply to issuances (i) pursuant to the Equity Commitments, (ii) pursuant to employee benefit plans as in existence as of the date of the Prospectus or (iii) in connection with accretive acquisitions of assets or businesses pursuant to Section 5.7(b) of the Partnership Agreement in which such Common Units are issued as consideration; provided, however, that is 30 with respect to clause (i) above, any recipient of Common Units will furnish to ▇▇▇▇▇▇ Brothers Inc. a letter substantially similar to that required below and attached hereto as Exhibit B with respect to the period between the date of any such issuance and the date 90 days after the Closing Datedate of the Prospectus. Holdings, New Propane and each executive officer and director of the Company will notPartnership shall furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units 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 the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.▇▇▇▇▇▇ Brothers Inc.
(j) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(k) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pm) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qn) The Company Partnership will execute notify ▇▇▇▇▇▇ Brothers Inc. as soon as practicable upon completing an Acquisition (as defined in the Partnership Agreement) or Capital Improvement (as defined in the Partnership Agreement) and deliver any stock purchase agreement reasonably requested will provide to ▇▇▇▇▇▇ Brothers Inc. as soon as practicable the calculations set forth in Section 5.7(b) and the Partnership Agreement and a certificate dated such completion date and signed by any Investorthe Chief Financial Officer of the Managing General Partner attesting to the validity and accuracy of such calculations and specifying how many Option Units are available for exercise by the Underwriters pursuant to Section 3 of this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (Inergy L P)
Additional Covenants. The Company covenants and agrees with each of the Placement Agents thatUnderwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, Pricing Prospectus and the Prospectus and any amendments or supplements theretothereto and any Issuer Free Writing Prospectus, as applicable, to the SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for Underwriters as soon as practicable after the Placement Agents, without charge, conformed date of this Agreement as many copies of the Registration Statement as originally filed Preliminary Prospectus and of each amendment thereto the Prospectus (including exhibits filed therewith or incorporated by reference therein and all documents incorporated or deemed to be incorporated by reference therein) and conformed copies as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Representatives of all consents and certificates any request of experts. The copies the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Pricing Prospectus, Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document under the 1934 Act before the termination completion of the offering distribution of the Securities Shares by the Company Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Pricing Disclosure Package or the Prospectus, of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you the Representatives after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Pricing Disclosure Package, Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company or the Placement AgentsUnderwriters, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During From time to time as requested by the Representatives and during the period when a prospectus the Prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealerdealer (or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Rules and Regulations), the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to the holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statementthis Agreement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will shall file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act▇▇▇▇ ▇▇▇. The Company will shall furnish to its security holders annual reports containing financial statements audited by its independent registered public accountants accounting firm and quarterly reports containing financial statements and financial information which may be unaudited. The Company will deliver to the Underwriters at its principal executive office a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the ▇▇▇▇ ▇▇▇. The Company shall deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available. For purposes of this paragraph (h), the Company will be deemed to have furnished all required information to the Underwriters to the extent that such information is filed on ▇▇▇▇▇ (or any successor to such system), unless any Underwriter reasonably requests copies of such documents.
(i) During the For a period beginning of 45 days from the date of this Agreement and continuing to and including the date that is 30 days after the Closing DateAgreement, the Company will not, not without the prior written consent of the Placement AgentsRepresentatives (which may be by electronic mail), offer directly or indirectly (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, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly announce the intention to make any such offer, pledge, sale, sell contract to sell, purchase, grant, transfer, disposition or filing, or (ii) enter into any swap or other agreement to sellor transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Common Stock, whether any such swap, agreement, or otherwise dispose ofother transaction described in (i) or (ii) above is to be settled by delivery of Common Stock, any equity securities other securities, in cash or otherwise, except for (A) Common Stock issued pursuant to this Agreement, (B) Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, except (C) non-managing member units exchangeable for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that such units referred to any employee stock incentive plan existing in this clause (C) are not exchangeable for Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Common Stock during such one year period), (D) Common Stock issuable upon the exchange of non-managing member units of subsidiaries of the Company outstanding on the date hereofof this Agreement or (E) registration statements filed in connection with future business combination transactions or registration statements on Form S-8 filed to register shares of Common Stock that are issuable pursuant to existing employee benefit plans of the Company.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, Pricing Prospectus and the Prospectus which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you the Representatives with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to youthe Representatives, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, After the date of this Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your the prior written consent. In consent of the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationRepresentatives.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the NYSE and to file with the Investor Warrant Shares NYSE all documents and notices required by the NYSE of companies that have securities listed on The Nasdaq SmallCap Marketincluded on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) The Company will cause each of its directors and executive officers set forth on Annex G hereto to execute and deliver to the Representatives “lock-up” agreements, each substantially in the form of Annex F hereto.
(q) If at any time during the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on 45-day period after the date of this Agreement, and any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the opinion of the Representatives the market price of the Shares has been or is likely to be materially affected (ii) regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the time that confirmations are given Prospectus), the Company will, after written notice from the Representatives advising the Company to the effect set forth above, forthwith consult with the Representatives concerning the issuance of a press release or sentother public statement, as specified by Rule 462(b)(2)responding to or commenting on such rumor, publication or event.
(qr) The Company will execute use its reasonable best efforts to continue to qualify as a REIT under the Code.
(s) For the fiscal year ended December 31, 2016, the Company retained BDO USA, LLP (“BDO”) as its independent registered public accounting firm. In the course of its audit, BDO reviewed the Company’s test procedures and deliver conducted annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company monitors and maintains appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code. For the 2017 fiscal year, the Company has engaged BDO to prepare an audit, including a review of the Company’s test procedures and to conduct annual compliance reviews designed to determine the Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and maintain appropriate accounting systems and procedures designed to determined compliance with the REIT provisions of the Code.
(t) Continuing through the Closing Date (and, if applicable, the Option Closing Date) the Company agrees to give, and will cause each of its subsidiaries to give, and shall direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the Underwriters and counsel to the Underwriters and their respective authorized representatives reasonable access to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require or would be appropriate in fulfilling any stock due diligence or other obligations as provided by law and will cause its officers to furnish to the Underwriters with such financial and operating data and other information with respect to the business and properties of the Company and its subsidiaries as the Underwriters may from time to time reasonably request.
(u) During the period beginning from the date of this Agreement and continuing through the Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase agreement reasonably requested by or pay anyone any Investorcompensation for soliciting purchases of the Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company.
(v) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇
Appears in 1 contract
Sources: Underwriting Agreement (Healthcare Realty Trust Inc)
Additional Covenants. The Company covenants Partnership Entities jointly and agrees severally covenant and agree with the Placement Agents Underwriters that:
(a) The Company Partnership will timely transmit copies of the ProspectusProspectus in a form approved by the Representative, and any amendments or supplements theretothereto (subject to the provisions of this Section 6), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulationsor, if applicable, Rule 430A(a)(3).
(b) The Company has furnished or Partnership will deliver to the Placement Agents Representative, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Representative as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Disclosure Package, the Prospectus and certificates any Issuer Free Writing Prospectus, and any amendment or supplement thereto, as the Representative may reasonably request; the Partnership will promptly advise the Representative when the Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the SEC; if there is a post-effective amendment to the Registration Statement that is not effective under the Act, the Partnership will use its commercially reasonable efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Representative, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Representative of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best commercially reasonable efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus or any Rule 462(b) Registration Statement (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Representative shall not previously have been advised and furnished with a copy or to which the Placement Agents Representative shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Representative after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed on it by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in forceExchange Act, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(e) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which (i) the Disclosure Package or any Issuer Free Writing Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading or (ii) any Issuer Free Writing Prospectus would conflict with the information in the Registration Statement or the Prospectus, the Partnership will (A) notify promptly the Representative so that any use of the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, may cease until it is amended or supplemented; (B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, to correct such statement, omission or conflict; and (C) supply any such amendment or supplement to the Underwriters in such quantities as they may reasonably request.
(f) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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 mademade or the circumstances then prevailing, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the Exchange Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECSEC (subject to Section 6(c) of this Agreement), and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise reasonably cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to securities, file a general consent to service of process under the laws of any jurisdiction, or subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company The Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158complying with Section 11(a) of the Registration StatementAct and the rules and regulations of the Commission thereunder (including, at the option of the Partnership, Rule 158).
(hi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
. The Partnership will, for a period of two (i2) During the period beginning years from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, furnish or make available to the Company Underwriters via the Commission’s Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the Act or the Exchange Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in the Partnership’s financial statements. Any report, document or other information required to be furnished, delivered or made available under this paragraph (i) shall be furnished, delivered or made available as soon as practicable after such report, document or information becomes publicly available.
(j) The Abraxas Parties will not, during the 365 days after the date of the Prospectus, without the prior written consent of the Placement AgentsRepresentative, directly or indirectly, (1) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than the Option Units or Common Units issued (a) pursuant to employee benefit plans, qualified unit option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, (b) to affiliates, but only to the extent that such affiliates agree to be bound by the terms of this paragraph or (c) in connection with acquisitions of assets or businesses in which Common Units are issued as consideration or are issued in order to pay the cash portion of any equity securities of the Companyconsideration in such an acquisition or to repay any indebtedness incurred in connection with such an acquisition, except for the Securities; provided, however, provided that the Company may issue, such acquisition results in an increase in available cash per unit on a pro forma basis) or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options to purchase, shares of Common Stock pursuant to any employee stock incentive plan 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (m) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with FINRA Rule 5110, if (1) during the last 17 days of the 365-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 365-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 365-day period, then the restrictions imposed by this paragraph (j) and the letters referred to in paragraph (m) below shall continue to apply until the expiration of the 18-day period beginning on the issuance of such earnings release or the occurrence of such material news or material event.
(jk) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the ProspectusRegistration Statement, which description complies in all respects the Disclosure Package and the Prospectus and will file with the requirements of Item 504 of Regulation SSEC such information on Form 10-K.K or Form 10-Q as may be required by Rule 463.
(kl) The Company Partnership will promptly provide you the Representative with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceAct.
(m) Except as required by lawThe Abraxas Parties will cause (i) each of the Private Investors to furnish to the Representative, on or prior to the Closing DateExecution Time, a letter in the Company will issue no press release or other communicationform of Exhibit B and (ii) the directors and officers of the General Partner and Abraxas, directly or indirectly, and will hold no press conferences with respect to furnish to the Company Representative, on or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conferencethe Execution Time, and, to a letter in the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.form of Exhibit C.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act), the Company Partnership shall both file an Abbreviated a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(o) It is understood that 66,750 Units (the “Directed Units”) shall be purchased by directors and officers of the General Partner (“Directed Unit Participants”) upon the terms and conditions set forth in the Registration Statement, the Disclosure Package and the Prospectus (the “Directed Unit Program”) and in accordance with the rules and regulations of FINRA and that any allocation of such Directed Units among such persons will be made in accordance with timely directions received by the Representative from Abraxas if not sold by the Underwriters. Under no circumstances will the Representative or any Underwriter be liable to any Abraxas Parties or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the public offering contemplated hereby.
(p) The Underwriters covenant and agree with the Partnership that unless they have obtained or will obtain, as the case may be, the prior written consent of the Partnership, they have not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any Free Writing Prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.”
(q) The Company No Partnership Entity will execute and deliver take, directly or indirectly, any stock purchase agreement action that is designed to or that has constituted or that could reasonably requested by be expected to cause or result in the stabilization or manipulation of the price of any Investorsecurity of the Partnership to facilitate the sale or resale of the Firm Units.
Appears in 1 contract
Sources: Underwriting Agreement (Abraxas Energy Partners LP)
Additional Covenants. The Company covenants and agrees with the Placement Agents you that:
(a) The Company will timely transmit copies (i) prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the name of the ProspectusUnderwriter and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares, and any amendments or supplements thereto, to file the SEC for filing Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no later than the Commission's close of business on the second business day following the date of the 1933 Act Rules and Regulations.
determination of the offering price of the Shares; (bii) The Company has furnished or will deliver prior to the Placement Agents and counsel for the Placement AgentsClosing Date, without charge, conformed copies of the Registration Statement as originally filed and of each not file any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents you shall not previously have been advised and furnished with a copy or to which the Placement Agents you shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and (iii) prior to the Company will Closing Date, promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During the period when a prospectus relating to The Company will advise you promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with you and otherwise cooperate your counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that PROVIDED the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of in any jurisdictionjurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to you, without charge, as many copies of the 1933 Act and Rule 158 Prospectus (including all documents incorporated by reference therein), or as it thereafter may be amended or supplemented, as you may from time to time reasonably request. The Company consents to the use of such Prospectus by you, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to you at or before the Closing Date two conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith or incorporated by reference therein and all documents incorporated by reference in the Prospectus and will deliver to you such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in reasonable opinion of your counsel, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders and to holders of the Securitiesshareholders, as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company will, for a period of three years from the Closing Date, deliver to you at your principal executive offices a copy of each report mailed by the Company to its stockholders or filed with the Commission pursuant to the Act or the Exchange Act. Any report required to be furnished under this paragraph (g) shall be furnished as soon as practicable after such report becomes available.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth Shares substantially in accordance with the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of not issue any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences conference, with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release which may not be unreasonably withheld or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationdelayed.
(nk) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNew York Stock Exchange.
(ol) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pm) If During any period in which a prospectus is required by law to be delivered by the Company elects to rely on Rule 462(b) under the 1933 ActUnderwriter or dealer, the Company shall both will promptly file an Abbreviated Registration Statement all documents required to be filed with the SEC in compliance with Rule 462(bCommission pursuant to Sections 13, 14 or 15(d) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Exchange Act.
(qn) The Company will execute and deliver any stock purchase agreement reasonably requested use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code, unless the Company's Board of Directors determines by any Investorresolution that it is in the best interests of the Company's stockholders not to so qualify.
Appears in 1 contract
Sources: Underwriting Agreement (Macerich Co)
Additional Covenants. The Company covenants Inergy Parties covenant and agrees agree with the Placement Agents Underwriter that:
(a) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or Partnership will deliver or make available to the Placement Agents Underwriter, and to counsel for the Placement Agents, without charge, conformed copies Underwriter (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriter as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriter of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus the Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriter shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriter shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriter shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriter, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriter a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriter may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish to its security holders annual reports containing financial statements audited by independent public accountants and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Closing Date, furnish or make available to the Underwriter a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(i) During the The Inergy Parties that own Common Units will not, for a period beginning of 90 days from the date of this Agreement the Prospectus, directly or indirectly, (i) 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 Units or securities convertible into, or exchangeable for Common Units, or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units (other than the Senior Subordinated Units and continuing the Junior Subordinated Units), or (ii) enter into any swap or other derivatives transaction that transfers to and including another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.; provided, however, that the foregoing restrictions do not apply to issuances (i) pursuant to employee benefit plans as in existence as of the date of the Prospectus or (ii) in connection with accretive acquisitions of assets or businesses pursuant to Section 5.7(b) of the Partnership Agreement in which such Common Units are issued as consideration; provided, however, that is 30 with respect to clause (i) above, any recipient of Common Units will furnish to ▇▇▇▇▇▇ Brothers Inc. a letter substantially similar to that required below and attached hereto as Exhibit B with respect to the period between the date of any such issuance and the date 90 days after the Closing Datedate of the Prospectus. Each executive officer and director of the Partnership shall furnish to the Underwriter, at or prior to the Company will notexecution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units 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 the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.▇▇▇▇▇▇ Brothers Inc.
(j) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(k) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pn) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Inergy L P)
Additional Covenants. The Company covenants and agrees the Operating Partnership, jointly and severally, covenant and agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives upon request, and to counsel for the Placement Agents, without charge, Underwriters (i) a conformed copies copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a conformed copy of each amendment thereto (including exhibits consent and certificate included, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representatives of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, Shares of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any such amendment to the Registration Statement becomes effective or when any such supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and Act, the 1933 Act Rules and Regulations, as now the 1934 Act and hereafter amended, the 1934 Act Rules and by the rules and regulations of the SEC thereunder, as from time to time in forceRegulations, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file (subject to Section 5(c)) with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or 1934 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act or the 1934 Act by any Placement Agents Underwriter or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of three years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with an securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.K and will file such reports with the SEC with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by the 1933 Act or the 1934 Act or by the applicable rules and regulations thereunder.
(kj) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating Act.
(k) Prior to any documents incorporated by reference into the Registration Statement or Closing Date (and, if applicable, the Prospectus which Option Closing Date), the Company files will not issue any press releases or other communications directly or indirectly and will hold no press conferences with the SEC at any time until the expiration of one year from the date respect to offering of the ProspectusShares, without your prior written consent, which consent will not be unreasonably withheld.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceStatement.
(m) Except as required by law, prior to the Closing Date, the The Company will issue no press release or other communication, directly or indirectlyuse its best efforts to obtain approval for, and will hold no press conferences with respect to maintain the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities listing of the Company or any of its subsidiaries, or Shares on the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationNew York Stock Exchange.
(n) The Company will use its reasonable best efforts not, directly or indirectly, offer for sale, contract to obtain approval sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, or any other capital stock ranking on a parity with or senior to the Common Stock (“Parity Shares”), any securities convertible into, or exercisable or exchangeable for, and maintain Common Stock or Parity Shares or any other rights to acquire Common Stock or Parity Shares, for a period of 180 days from the quotation date of the Prospectus, without the prior written consent of the Representatives, except for (i) the Property Shares, (ii) the Shares and sold hereunder, (iii) OP Units, (iv) shares of Common Stock issued in exchange for OP Units or (v) shares of Common Stock issued under the Investor Warrant Shares on The Nasdaq SmallCap MarketCompany’s 2004 long-term incentive plan.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (ia) transactions are executed in accordance with management’s authorization, authorizations; (iib) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, ; (iiic) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, ; and (ivd) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York, New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute cause each officer and deliver director of the Company, and Corporex, Commonwealth Hotels, Inc., and such other affiliated entities of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Representatives shall reasonably request, and ▇▇▇▇▇▇ ▇. ▇▇▇, to furnish to the Representatives, prior to the Closing Date for the Firm Shares, a letter agreement, 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, contract to sell, sell, distribute, grant any stock option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 180 days from the Effective Date, without the prior written consent of the Representatives.
(r) If at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(s) The Company will have engaged, prior to the Closing Date, , or another institution reasonably satisfactory to the Representatives, to act as transfer agent and registrar following the Closing Date.
(t) During a period of 180 days from the Effective Date, the Company shall not, without the prior written consent of the Representatives, file a registration statement under the 1933 Act except for any registration statement registering the issuance of shares under any employee benefit plan or the issuance or resale of shares issued in exchange for OP Units.
(u) The Company will use its best efforts to meet the requirements to qualify as a real estate investment trust under the Code, unless otherwise determined by the Company’s Board of Directors.
(v) The Company and the Operating Partnership will cooperate with the applicable Contributors and on or before December 31, 2006 will consummate the purchase agreement reasonably requested of the remaining % of the interests in the Contributed Entity holding the Embassy Suites Hotel Cincinnati-RiverCenter not held by the Company and its subsidiaries on the Closing Date, as described in the Prospectus, in accordance with the terms and conditions of the applicable Contribution Agreement; provided that the Representatives may release the Company from its obligation hereunder in the event that the Independent Directors (hereinafter defined) determine in good faith that such consummation is not in the best interests of the Company.
(w) The Company will comply with all provisions of any Investorundertakings in the Registration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Eagle Hospitality Properties Trust, Inc.)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholder, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders the Securities Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than 15 months after the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) Effective Date of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the Effective Date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 1l(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five (5) years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.B.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release releases or other communicationcommunications, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiariesCompany, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesCompany, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationcon sent.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap MarketStock Market National Market System.
(om) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their its assets and will maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated 's financial statements and to maintain accountability for the assets of the Company and its subsidiariesCompany, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pn) If For a period of 180 days from the Company elects to rely on Rule 462(b) under the 1933 Acteffective date, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 will not directly or indirectly offer, sell, contract to sell or otherwise dispose of any shares of the 1933 Act by Company's Common Stock, any securities convertible into or exchangeable for such Common Stock or any other rights to acquired such shares, except for sales of shares of Common Stock pursuant to the earlier exercise of (i) 9:00 p.m., St. Louis time, options under the Company' Stock Option Plans outstanding on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file to obtain as soon as possible the lifting thereof, if issued. 9
(c) The Company will cooperate with the SEC, Underwriters and furnish their counsel in endeavoring to qualify the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its security holders shareholders and will file as an exhibit in a report pursuant to holders the Securities and Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement., an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available. 10
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Representatives at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its shareholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Representatives similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNational Association of Securities Dealers, Inc. Automated Quotation/National Market System (the "Nasdaq/NMS").
(om) For a period of 180 days from the Effective Date, the Company will not, and will use its best efforts to cause its directors and officers to not, directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options under the Company's stock option plan. 11
(n) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) of The Company will deliver to, or upon the 1933 Act and Rule 158 of the 1933 Act Rules and Regulationsorder of, the Company will make generally available Underwriters, without charge from time to its security holders and to holders of the Securitiestime, as soon many copies of any Preliminary Prospectus as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Actthey may reasonably request. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During deliver to, or upon the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Dateorder of, the Company will not, Underwriters without the prior written consent charge as many copies of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company will promptly provide you with copies consents to the use of such Prospectus by the Underwriters and by all correspondence dealers to and fromwhom the Shares may be sold, and all documents issued to and by, the SEC both in connection with the registration of the Securities under the 1933 Act offering or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation sale of the Shares and for such other purposes and for such period of time thereafter as the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed Prospectus is required by law to be delivered in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement connection with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 offering or sale of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.the
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company EVEP Parties jointly and severally covenant and agree with the several Underwriters with respect to the provisions of this Section 3(a):
(i) The Issuers will timely transmit copies of the ProspectusPreliminary Prospectus and the Final Prospectus in a form approved by the Representative on behalf of the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 3), to the SEC Commission for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations. The Issuers will timely transmit copies of any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Schedule III hereof) to the extent required by Rule 433 under the 1934 Act to the Commission for filing. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the 1933 Act (without giving effect to the proviso therein) and in any event prior to the Delivery Date.
(bii) The Company has furnished or Issuers will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Final Prospectus and certificates any amendment or supplement thereto as the Representative on behalf of experts. The copies the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Issuers will use their best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Basic Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement the Final Prospectus or suspending the qualification or registration of the initiation Securities for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership or Finance Corp shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Issuers will use its their best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Neither the Partnership nor Finance Corp will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Final Prospectus as filed pursuant to such Rule 424(b) or any Issuer Free Writing Prospectus)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Representative on behalf of the Underwriters shall have reasonably objected in writing after being so advised unless the Partnership or which Finance Corp shall have determined based upon the advice of counsel that such amendment or supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership or Finance Corp will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or any Issuer Free Writing Prospectus becomes effective or when any supplement to the Basic Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, each of the Company Partnership and Finance Corp will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership Entities or of which the Company Partnership shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Final Prospectus or any Issuer Free Writing Prospectus, as then amended or supplemented 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Final Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership or Finance Corp will forthwith at its expense prepare and file with the SECCommission, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership or Finance Corp will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that neither the Company Partnership nor Finance Corp shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership and Finance Corp will make generally available to its their respective security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During The Partnership and Finance Corp will, for a period of two years from the period when Delivery Date, furnish or make available to the Underwriters via the Commissions’ Interactive Data Electronic Applications (IDEA) system or its website a prospectus relating copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership or Finance Corp to holders of Securities (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Securities is required Commission pursuant to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership and Finance Corp will furnish deliver or make available to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unauditedstatements.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jix) The Company Partnership and Finance Corp will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kx) The Company Partnership and Finance Corp will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities under the 1933 Act Act.
(xi) Each of the Partnership and Finance Corp agrees that, unless it has obtained or will obtain the prior written consent of the Representative, it has not made and will not make any offer relating to any documents incorporated the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by reference into the Registration Statement or the Prospectus which the Company files Partnership with the SEC Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule III hereto and any electronic road show. The Partnership and Finance Corp agrees that (x) it has treated and will treat, as the case may be, each free writing prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xii) If, at any time until prior to the expiration of one year from the date filing of the ProspectusFinal Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership and Finance Corp will (i) notify the Representative promptly so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(pxiii) If the Company elects Partnership and Finance Corp elect to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership and Finance Corp shall both file an Abbreviated Registration Statement abbreviated registration statement with the SEC Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qxiv) During the period from the date hereof through and including the date that is 90 days after the date hereof, the Issuers and each of the Guarantors will not, without the prior written consent of the Representative, on behalf of the Underwriters, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by any of the EVEP Parties and having a tenor of more than one year.
(xv) The Company Issuers will execute assist the Underwriters in arranging for the Notes to be eligible for clearance and deliver settlement through DTC.
(xvi) None of the Partnership Entities will take, directly or indirectly, any stock purchase agreement action designed to or that could reasonably requested be expected to cause or result in any stabilization or manipulation of the price of the Notes.
(xvii) The Issuers will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the 1933 Act.
(b) The several Underwriters severally but not jointly, covenant and agree with the Partnership and Finance Corp that unless they have obtained or will obtain, as the case may be, the prior written consent of the Partnership and Finance Corp, they have not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule III hereto and any Investorelectronic road show.
Appears in 1 contract
Additional Covenants. (a) The Company Corporation covenants and agrees with the Placement Agents several Underwriters that:
(ai) The Company Corporation will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Corporation will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Corporation will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Corporation will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Corporation will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement Prospectus or of any order Issuer Free Writing Prospectus or preventing or suspending the use of the Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Shares for offering, issuance or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Corporation shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Corporation will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Corporation will not file any amendment or supplement to the Registration Statement, the Prospectus or Issuer Free Writing Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file or any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Issuer Free Writing Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Corporation shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Corporation will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Prospectus or Issuer Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Corporation will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Corporation or of which the Company Corporation shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Corporation or the Placement Agentscounsel for the Underwriters, the Prospectus or any Issuer Free Writing Prospectus, as then amended or supplemented 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Corporation will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Corporation will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Corporation shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Corporation will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Corporation will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Corporation will, for a period of two years from the Delivery Date, furnish to the Underwriters a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Corporation to holders of Shares or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act other than documents filed and generally available on the SEC ▇▇▇▇▇ system. Any report, document or other information required to be furnished under this paragraph (viii) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(iix) During the The GMX Entities will not, for a period beginning of 90 days from the date of this Agreement and continuing the Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to and including sell 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 Preferred Stock or Common Stock of the Corporation held by them or securities convertible into, or exchangeable for Preferred Stock or Common Stock of the Corporation held by them, or sell or grant options, rights or warrants with respect to any Preferred Stock or Common Stock of the Corporation held by them or securities convertible into or exchangeable for Preferred Stock or Common Stock of the Corporation held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Preferred Stock or Common Stock of the Corporation, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Stock or Common Stock of the Corporation held by them or other securities, in cash or otherwise, in each case without the prior written consent of the Representatives; provided, however, that the foregoing restrictions do not apply to issuances pursuant to employee benefit plans as in existence as of the date of the Prospectus. In the event that (i) during the last 17 days of the 90-day period described in the preceding sentence, the Corporation issues an earnings release or announces a material news or a material event or (ii) prior to the expiration of such 90-day period, the Corporation announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then the restrictions described in the preceding sentence will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event. Each of the Chief Executive Officer, the Chief Financial Officer and each director of the Corporation shall furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is 30 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 Preferred Stock or securities convertible into or exchangeable for Common Stock or Preferred 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 Common Stock or Preferred Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or Preferred Stock or other securities, in cash or otherwise, in each case for a period of 90 days after from the Closing Date, date of the Company will notProspectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the SecuritiesRepresentative; provided, however, that the Company may issue, or grant options foregoing restriction shall not apply to purchase, an aggregate of 350,000 shares of Common Stock pursuant provided that the selling holder provides the Representative with written notice prior to any employee stock incentive plan existing on the date hereofsuch transaction described in clause (1) or (2) above.
(jx) The Company Corporation will apply the proceeds from the sale of the Securities Shares sold by it as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Corporation will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus▇▇▇▇ ▇▇▇.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Corporation will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(oxiii) The Company Corporation agrees that, unless it has obtained or will obtain the prior written consent of the Representative, it has not made and its subsidiaries will maintain not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Corporation with the SEC or retained by the Corporation under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and keep accurate books any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Underwriter Permitted Free Writing Prospectus.” The Corporation agrees that (x) it has treated and records reflecting their assets will treat, as the case may be, each Permitted Free Writing Prospectus (as defined below) as an Issuer Free Writing Prospectus and maintain internal accounting controls (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(xiv) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Corporation will (i) transactions are executed in accordance with management’s authorization, notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission; and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of the Company and its subsidiaries is permitted only you in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalssuch quantities as you may reasonably request.
(pb) If The several Underwriters covenant and agree with the Company elects to rely on Rule 462(b) under Corporation that: Each Underwriter, severally and not jointly, agrees with the 1933 ActCorporation that, unless it has obtained or will obtain, as the case may be, the Company shall both file prior written consent of the Corporation, it has not made and will not make any offer relating to the Securities that would constitute an Abbreviated Registration Statement Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Corporation with the SEC in compliance with or retained by the Corporation under Rule 462(b) and pay 433; provided that the applicable fees in accordance with Rule 111 prior written consent of the 1933 Act parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the earlier of (i) 9:00 p.m.Corporation is hereinafter referred to as a “Corporation Permitted Free Writing Prospectus” and together with any Underwriter Permitted Free Writing Prospectus, St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)a “Permitted Free Writing Prospectus.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.”
Appears in 1 contract
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Stockholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) If the Registration Statement is not effective under the Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of the time when the Registration Statement has become effective. The Company (i) will prepare and timely transmit copies of file with the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Commission under Rule 424(b) of the 1933 Act Rules and Regulations., if required, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (ii) will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and
(b) The Company has furnished will advise the Underwriters promptly, after it shall receive notice or will deliver to obtain knowledge thereof, of any request of the Placement Agents and counsel Commission for the Placement Agents, without charge, conformed copies amendment of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement the Prospectus or of the initiation institution or threatening of any proceedings for any of such purposes. The that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not in compliance cooperate with the 1933 Act Rules Underwriters and Regulations; and their counsel in endeavoring to qualify the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in your judgment or in the opinion of counsel for the
(f) The Company will make generally available to its security holders stockholders and will file as an exhibit in a report pursuant to holders the Securities Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred 15 months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its stockholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Stockholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval forfor the listing of the Shares to be sold by the Company hereunder, and to maintain the quotation of the Shares and Company's shares, on the Investor Warrant Shares on The Nasdaq SmallCap National Market.
(om) The For a period of 180 days from the date of the Prospectus, the Company will not, and will use its subsidiaries will maintain best efforts to cause its directors and keep accurate books officers to not directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares sold hereunder and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that except for sales of shares of Common Stock by the Company in Permitted Issuances. For purposes of the foregoing, a "Permitted Issuance" shall mean any sale or issuance by the Company (i) transactions are executed pursuant to the Company's 1997 Stock Incentive Plan or Employee Stock Purchase Plan, both described in accordance with management’s authorizationthe Prospectus, (ii) transactions are recorded as necessary pursuant to permit the preparation exercise of options referred to in the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariesProspectus, (iii) access in an issuance pursuant to a registration statement under the assets Securities Act in connection with an acquisition in which the recipients of such Common Stock or Securities agree that such Common Stock or Securities may not be transferred or sold by them during the period ending 180 days from the date of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and Prospectus without your prior written consent or (iv) in a private placement or other unregistered issuance in connection with an acquisition in which the recorded accounts recipients of such Common Stock or securities agree that 80% of such Common Stock or securities may not be transferred or sold by them during the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on period ending 180 days from the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)Prospectus without your prior written consent.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Sources: Underwriting Agreement (Advanced Communication Systems Inc)
Additional Covenants. The Company covenants Quest Parties jointly and agrees severally covenant and agree with the Placement Agents Underwriters that:
(a) The Company Partnership will timely transmit transmit, or cause to be transmitted, copies of the ProspectusProspectus in a form approved by the Representatives, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations(including pursuant to Rule 430A(a)(3)).
(b) The Company has furnished or Partnership will deliver to the Placement Agents Representatives, and to counsel for the Placement AgentsUnderwriters, without charge, conformed copies a signed copy of the Registration Statement as originally filed and of each amendment thereto (any amendments to the Registration Statement, including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents exhibits thereto, and certificates of experts. The sufficient copies of the Registration Statement and foregoing (other than exhibits) for distribution of a copy to each amendment thereto furnished of the other Underwriters; the Partnership will deliver to the Placement Agents Underwriters as soon as practicable after the date of this Agreement as many copies of the Disclosure Package, the Prospectus and any Issuer Free Writing Prospectus, and any amendment or supplement thereto, as the Representatives may reasonably request. The Partnership will be identical to promptly advise the electronically transmitted copies thereof Representatives (i) when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the 1933 Rules and Regulations. The Company will promptly notify offering of the Placement Agents Units, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing notice objecting to its use or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation institution or threatening of any proceedings proceeding for that purpose and (v) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the institution or threatening of any proceeding for such purposespurpose. The Company Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if any stop order is issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the lifting thereof at withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the earliest possible momentRegistration Statement or a new registration statement and using its commercially reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(c) The Company Partnership will not file any amendment or supplement to the Registration Statement, Statement or the Prospectus or any Rule 462(b) Registration Statement (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Representatives shall not previously have been advised and furnished with a copy or to which the Placement Agents Representatives shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filedobjected.
(d) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in forceAct, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(e) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which (i) the Disclosure Package or any Issuer Free Writing Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading or (ii) any Issuer Free Writing Prospectus would conflict with the information in the Registration Statement or the Prospectus, the Partnership will (A) notify promptly the Representatives so that any use of the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, may cease until it is amended or supplemented; (B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, to correct such statement, omission or conflict; and (C) supply any amendment or supplement to the Representatives in such quantities as they may reasonably request.
(f) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriters shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, 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 mademade or the circumstance then prevailing, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the Exchange Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECSEC (subject to Section 5(c) of this Agreement), and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fg) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gh) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations158, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning earnings statement (which need not be audited) in reasonable detail of the Partnership and its subsidiaries covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hi) During The Partnership will, for a period of two years from the period when Closing Date, furnish or make available to the Underwriters via the Commission’s Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) system or its website a prospectus relating copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of the Securities is required to be delivered under the 1933 Act by any Placement Agents such exchange or dealer, the Company will file promptly all documents required to be filed market or with the SEC pursuant to Sections 13(a), 13(c), 14 the Act or 15(d) of the 1934 Exchange Act. The Company Partnership will furnish deliver or make available to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in the Partnership’s financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unauditedstatements.
(ij) During The Partnership will not, during the period beginning from 180 days after the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will notProspectus, without the prior written consent of the Placement AgentsWachovia Capital Markets, LLC, directly or indirectly, (1) offer for sale, sell sell, pledge or otherwise dispose of (or enter into any agreement to selltransaction or device which is designed to, or otherwise dispose could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exchangeable for Common Units (other than Common Units or securities convertible into or exchangeable for Common Units issued (i) pursuant to employee benefit plans existing on the date hereof or pursuant to currently outstanding options, any equity warrants or rights, (ii) to affiliates (iii) in connection with accretive acquisitions of assets or business in which Common Units or securities convertible into or exchangeable for Common Units are issued as consideration, or (iv) in connection with the sale of the Company, except for the SecuritiesOption Units; provided, however, that any such recipient of Common Units (other than the Company may issue, Option Units) will agree to be bound by these provisions for the remainder of the 180-day period) or sell or grant options options, rights or warrants with respect to purchaseany Common Units or securities convertible into or exchangeable for Common Units (other than the grant of options, shares of Common Stock rights or warrants pursuant to any employee stock incentive plan 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 Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise. Notwithstanding the foregoing or the provisions of the letters referred to in paragraph (l) below, for the purpose of facilitating research coverage of the Partnership by the Underwriters and compliance with NASD Rule 2711, if (1) during the last 17 days of the 180-day restricted period the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs or (2) prior to the expiration of the 180-day restricted period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, then the restrictions imposed by this paragraph (j) and the letters referred to in paragraph (l) below 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 Wachovia Capital Markets, LLC, on behalf of the Underwriters, waives such extension in writing.
(jk) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the ProspectusRegistration Statement, which description complies in all respects the Disclosure Package and the Prospectus and will file with the requirements of Item 504 of Regulation SSEC such information on Form 10-K.K or Form 10-Q as may be required by Rule 463.
(kl) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceAct.
(m) Except as required by lawThe Quest Parties will cause Quest, the General Partner, the Partnership and the directors and executive officers of the General Partner and Quest, to furnish to the Representatives, on or prior to the Closing DateExecution Time, a letter in the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any form of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.Exhibit A.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company Partnership elects to rely on Rule 462(b) under the 1933 Act), the Company Partnership shall both file an Abbreviated a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(o) It is understood that up to 437,500 of the Firm Units (the “Directed Units”) will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and persons having business relationships with the Quest Parties (“Directed Unit Participants”) upon the terms and conditions set forth in the Registration Statement, the Disclosure Package and the Prospectus (the “Directed Unit Program”) and in accordance with the rules and regulations of the FINRA and that any allocation of such Directed Units among such persons will be made in accordance with timely directions received by RBC Capital Markets Corporation from the Partnership. Under no circumstances will RBC Capital Markets Corporation or any Underwriter be liable to any Quest Parties or to any Directed Unit Participant for any action taken or omitted to be taken in good faith in connection with such Directed Unit Program. To the extent that any Directed Units are not affirmatively reconfirmed for purchase by any Directed Unit Participant on or immediately after the date of this Agreement, such Directed Units may be offered to the public as part of the public offering contemplated hereby.
(p) The Partnership agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Partnership that, unless it has or shall have obtained, as the case may be, the prior written consent of the Partnership, it has not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided, that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Partnership is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Partnership agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(q) The Company No Quest Party will execute and deliver take, directly or indirectly, any stock purchase agreement action that is designed to or that has constituted or that could reasonably requested by be expected to cause or result in the stabilization or manipulation of the price of any Investorsecurity of the Partnership to facilitate the sale or resale of the Firm Units.
Appears in 1 contract
Sources: Underwriting Agreement (Quest Energy Partners, L.P.)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of If the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of is not effective under the Registration Statement and each amendment thereto furnished to Act, the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent cause the issuance Registration Statement to become effective as promptly as possible, and it will notify you, promptly after it shall receive notice thereof, of any stop order andthe time when the Registration Statement has become effective. The Company (i) will prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if any stop order is issuedrequired, to obtain the lifting thereof a Prospectus containing information previously omitted at the earliest possible moment.
time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as applicable; (cii) The Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing or which is not in compliance with the 1933 Act Rules and Regulations; and the Company (iii) will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(db) During The Company will advise the period when a prospectus relating to Underwriters promptly, after it shall receive notice or obtain knowledge thereof, of any request of the Securities is required Commission for amendment of the Registration Statement or for supplement to be delivered under the 1933 Act by Prospectus or for any Placement Agents additional information, or dealer, of the Company will comply, at its own expense, with all requirements imposed issuance by the 1933 Act and Commission of any stop order suspending the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations effectiveness of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the use of the Prospectus to comply with or of the 1933 Actinstitution or threatening of any proceedings for that purpose, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at use its expense prepare best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and file with to obtain as soon as possible the SEClifting thereof, and furnish to the Placement Agents a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such complianceif issued.
(fc) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the The Company will furnish such proper information as may be lawfully required cooperate with the Underwriters and otherwise cooperate their counsel in qualifying endeavoring to qualify the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents they may reasonably designate have designated and will make such applications, file such documents, and make in each year furnish such statements or reports information as are or may be reasonably required by the laws of such jurisdictions; providednecessary for that purpose, however, that provided the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation as doing business in any jurisdiction where it is not now so taxed. The Company will, from time to time, file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the laws of any jurisdictionUnderwriters may reasonably request.
(gd) In accordance with Section 11(a) The Company will deliver to, or upon the order of, the Underwriters, without charge from time to time, as many copies of any Preliminary Prospectus as they may reasonably request. The Company will deliver to, or upon the order of, the Underwriters without charge as many copies of the 1933 Act Prospectus, or as it thereafter may be amended or supplemented, as they may from time to time, during the period in which delivery of a prospectus is required by the Act, reasonably request. The Company consents to the use of such Prospectus by the Underwriters and Rule 158 by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the 1933 Act Rules Shares and Regulationsfor such other purposes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with the offering or sale of the Shares. The Company will deliver to the Underwriters at or before the Closing Date two (2) signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, without exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the prospectus in order to make the statements therein, in light of the circumstances existing at the time the prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the prospectus so that the prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the prospectus will comply with law.
(f) The Company will make generally available to its security holders stockholders and will file as an exhibit in a report pursuant to holders the Securities and Exchange Act of 1934, as amended (the Securities"1934 Act"), as soon as practicableit is practicable to do so, an earning statement (which need not be audited) but in reasonable detail covering the 12 months beginning any event not later than the first day of the month next succeeding the month in which occurred fifteen (15) months after the effective date (within the meaning of Rule 158) of the Registration Statement, an earnings statement in reasonable detail, covering a period of at least twelve (12) consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriters in writing when such statement has been so made available.
(hg) During The Company will, for a period of five (5) years from the period when Closing Date, deliver to the Underwriters at their principal executive offices a prospectus relating to any reasonable number of the Securities is required to be delivered under the 1933 Act copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by any Placement Agents or dealer, the Company will file promptly all documents required to be its stockholders or filed with the SEC any securities exchange pursuant to Sections 13(a), 13(c), 14 the requirements of such exchange or 15(d) of with the Commission pursuant to the Act or the 1934 Act. The Company will furnish deliver to its security holders annual the Underwriters similar reports containing with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements audited by independent public accountants and quarterly reports containing financial statements and financial statements. Any report, document or other information which may required to be unauditedfurnished under this paragraph (g) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(jh) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(ki) The Company will promptly provide supply you with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(lj) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the consolidated financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(mk) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Company Option Closing Date), neither the Company, any subsidiary nor any Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or Company, any of its subsidiariessubsidiary, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariessubsidiary, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nl) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares on, the Nasdaq National Market (the "NNM").
(m) Except pursuant to this Agreement or with the prior written consent of A.G. Edwards & Sons, Inc., the Company will not, and the Investor Warrant Company has p▇▇▇▇▇▇▇ ▇▇▇▇ements executed by each shareholder of the Company providing that none of them will, and the Company will use its best efforts to cause its other directors and officers to not, for a period of 180 days from the Effective Date, directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock, any securities exchangeable for Common Stock or any other rights to acquire such shares without your prior written consent, except for the Shares on The Nasdaq SmallCap Marketsold hereunder, sales of shares of Common Stock in connection with acquisitions by the Company or upon the exercise or conversion of outstanding warrants or options described in the Registration Statement and sales of shares of Common Stock to the Company's employees or directors pursuant to the exercise of options under the Company's stock option plans.
(n) For a period of 180 days from the Effective Date, the Selling Shareholders will not directly or indirectly sell, contract to sell or otherwise dispose of any shares of the Company's Common Stock or rights to acquire such shares without your prior written consent, except for the Shares sold hereunder.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s 's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s 's authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company further covenants and agrees with the Placement Agents thateach Underwriter as follows:
(a) The Company will timely transmit shall furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) (the “Prospectus Delivery Period”) in connection with sales of the Offered Shares, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of Registration Statement as the 1933 Act Rules and RegulationsRepresentatives may reasonably request.
(b) The During the Prospectus Delivery Period, the Company has furnished or (i) will deliver furnish to the Placement Agents and counsel Representatives for the Placement Agentsreview, without charge, conformed copies a reasonable period of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished time prior to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T or by Rule 424(b) proposed time of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC filing of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposes. The Company will use its best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement and (ii) will not amend or supplement the Registration Statement (including any amendment or supplement through incorporation of any report filed under the Exchange Act) without the Representatives’ prior written consent, which consent will not be unreasonably withheld or delayed. During the Prospectus Delivery Period, prior to amending or supplementing any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (including any amendment or supplement through incorporation of any other prospectus relating report filed under the Exchange Act), the Company shall furnish to the Securities filed pursuant Representatives for review, a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement, a copy of each such proposed amendment or supplement. The Company shall not file or use any such proposed amendment or supplement without the Representatives’ prior written consent, which consent will not be unreasonably withheld or delayed. The Company shall file with the Commission within the applicable period specified in Rule 424(b) of under the 1933 Securities Act Rules and Regulations that differs from the Prospectus as any prospectus required to be filed pursuant to such Rule 424(b)Rule.
(c) The Company shall furnish to the Representatives for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed free writing prospectus or any amendment or supplement thereto without the Representatives’ prior written consent, which consent will not file be unreasonably withheld or delayed. The Company shall furnish to each Underwriter, without charge, as many copies of any document under the 1934 Act before the termination of the offering of the Securities free writing prospectus prepared by or on behalf of, used by or referred to by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Placement Agents shall not previously have been advised and furnished with a copy or to which the Placement Agents shall have as such Underwriter may reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the request. If at any time when any amendment to the Registration Statement becomes effective or when any supplement to during the Prospectus has been filed.
Delivery Period (d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time but in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to if at any time through and including the First Closing Date) there occurred or affecting the Company occurs an event or of which the Company shall be advised in writing by the Placement Agents shall occur development as a result of whichwhich any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained in the Registration Statement, the Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the opinion light of the Company or the Placement Agentscircumstances prevailing at such time, not misleading, the Prospectus Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict so that the statements in such free writing prospectus as then so amended or supplemented would will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading misleading, as the case may be; provided, however, that prior to amending or supplementing any such free writing prospectus, the Company shall furnish to the Representatives for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Company shall not file, use or refer to any such amended or supplemented free writing prospectus without the Representatives’ prior written consent, which consent will not be unreasonably withheld or delayed.
(iid) The Company shall not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) If, during the Prospectus Delivery Period, the Time of Sale Prospectus is being used to solicit offers to buy the Offered Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall be occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement, the Prospectus or any preliminary prospectus, or if, in the opinion of counsel for the Underwriters or the Company, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters 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 include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the information contained in the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) Prior to the expiration of the option referred to in Section 2(c), the Company shall promptly advise the Representatives in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Shares from any securities exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order as soon as practicable. Additionally, the Company agrees that it shall comply with all applicable provisions of Rule 424(b), Rule 433 and Rule 430B under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(g) During the Prospectus Delivery Period, if any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser, not misleading, or if in the opinion of the Representatives or counsel for the Underwriters or the Company it is otherwise necessary to amend or supplement the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulationsapplicable law, the Company will forthwith at its expense prepare agrees (subject to Section 3A(b) and Section 3A(c)) hereof to promptly prepare, file with the SECCommission and furnish, and furnish at its own expense, to the Placement Agents Underwriters upon request, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement of a reasonable number material fact or omit to state a material fact necessary in order to make the statements therein, in the light of copies the circumstances when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the Representatives’ consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under Section 3(b) or other filing that will correct such statement or omission or effect such complianceSection 3(c).
(fh) During The Company shall cooperate with the period when a prospectus relating Representatives and counsel for the Underwriters to any of qualify or register the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Offered Shares for offer and sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws (or other foreign laws) of such those jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of such jurisdictions; provided, however, that the Offered Shares. The Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or take any action that would subject it to file a general consent to service of process under in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the laws Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Offered Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any jurisdictionproceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof as soon as practicable.
(gi) In accordance with Section 11(a) The Company shall apply the net proceeds to the Company from the sale of the 1933 Act and Rule 158 Offered Shares sold by it in the manner described under the caption “Use of Proceeds” in the 1933 Act Rules and RegulationsRegistration Statement, the Time of Sale Prospectus and the Prospectus.
(j) The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(k) The Company will make generally available to its security holders and to holders of the Securities, Representatives as soon as practicable, practicable an earning earnings statement (which need not be audited) in reasonable detail covering the 12 a period of at least twelve months beginning not later than with the first day fiscal quarter of the month next succeeding Company commencing after the month in which occurred date of this Agreement that will satisfy the effective date (within the meaning provisions of Rule 158Section 11(a) of the Registration StatementSecurities Act and the rules and regulations of the Commission thereunder.
(hl) During The Company will comply with the period when a prospectus relating Securities Act and the Exchange Act so as to any permit the completion of the Securities is required to be delivered under distribution of the 1933 Act Offered Shares as contemplated by any Placement Agents or dealerthis Agreement, the Registration Statement, the Time of Sale Prospectus and the Prospectus. Without limiting the generality of the foregoing, the Company will will, during the Prospectus Delivery Period, file promptly on a timely basis with the Commission and the NYSE all reports and documents required to be filed with under the SEC pursuant to Sections 13(a), 13(c), 14 or 15(dExchange Act.
(m) of the 1934 Act. The Company will furnish use its best efforts to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unauditedlist, subject to notice of issuance, the Offered Shares on the NYSE to the extent the Offered Shares are not already so listed.
(in) During the period beginning from the date of this Agreement and continuing to commencing on and including the date that is 30 days after hereof and continuing through and including the Closing Date45th day following the date of the Prospectus (such period, as extended as described below, being referred to herein as the “Lock-up Period”), the Company will not, without the prior written consent of the Placement AgentsRepresentatives (which consent may be withheld in their sole discretion), directly or indirectly: (i) sell, offer for to sell or contract to sell or lend any Shares or Related Securities (as defined below); (ii) effect any short sale, sell or establish or increase any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position” (as defined in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities (as defined below); (iii) pledge, hypothecate or grant any security interest in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares or Related Securities; (v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of any Shares or Related Securities, regardless of whether any such transaction is to sellbe settled in securities, in cash or otherwise dispose of, otherwise; (vi) announce the offering of any equity securities Shares or Related Securities; (vii) file any registration statement under the Securities Act in respect of any Shares or Related Securities (other than (A) as contemplated by this Agreement with respect to the Offered Shares and (B) any registration statement on Form S-8 or any amendments thereto); or (viii) publicly announce the intention to do any of the Company, except for the Securitiesforegoing; provided, however, that the Company may issue(A) effect the transactions contemplated hereby, (B) issue Shares or Related Securities or options to purchase Shares or Related Securities, or grant options to purchaseissue Shares or Related Securities upon exercise of options, shares of Common Stock pursuant to any employee stock incentive option, equity incentive, stock bonus or other stock plan existing on or arrangement described in the date hereof.
Registration Statement, the Time of Sale Prospectus and the Prospectus (jas such plans or arrangements may be amended from time to time), (C) The Company will apply effect the proceeds from the sale transfer of Shares and Related Securities by operation of the Securities as set forth provisions of Section 5.3.6 and Article VI of the Company’s Articles of Amendment and Restatement and (D) effect any issuances of Shares in the description under “Use connection with a redemption of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC OP Units or OP Units in connection with the registration conversion of Class RS LTIP Units or Class O LTIP Units pursuant to the Operating Partnership Agreement. For purposes of the Securities under the 1933 Act foregoing, “Related Securities” shall mean any options or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release warrants or other communication, directly or indirectly, and will hold no press conferences with respect rights to the Company acquire Shares or any of its subsidiaries, the financial condition, results of operations, business, properties, assets securities exchangeable or liabilities of the Company exercisable for or any of its subsidiariesconvertible into Shares, or the offering of the Securitiesto acquire other securities or rights ultimately exchangeable or exercisable for, or convertible into, Shares, including, without your prior written consent. In the event that any such disclosure is required by lawlimitation, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communicationOP Units.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company EVEP Parties jointly and severally covenant and agree with the several Underwriters with respect to the provisions of this Section 5(a):
(i) The Partnership will timely transmit copies of the ProspectusPreliminary Prospectus and the Final Prospectus in a form approved by the Underwriters, and any amendments or supplements theretothereto (subject to the provisions of this Section 5), to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver or make available to each of the Placement Agents Underwriters, and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriters as soon as practicable after the date of this Agreement as many copies of all consents the Preliminary Prospectus, the Final Prospectus and certificates any amendment or supplement thereto as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and it will notify the Underwriters, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC Commission or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of the Preliminary Prospectus, any preliminary prospectus Permitted Free Writing Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Units for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Final Prospectus, the Basic Prospectus or Issuer Free Writing Prospectus or any other free writing prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you the Underwriters after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or Issuer Permitted Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Final Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company Partnership Entities or of which the Company Partnership shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriters, the Final Prospectus or any Issuer Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Final Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SECCommission, and furnish to the Placement Agents Underwriters a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation partnership or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicableholders, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by independent registered public accountants accounting firm and furnish or make available and quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriters via the Commissions’ Interactive Data Electronic Applications (IDEA) system or its website a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units (excluding any periodic income tax reporting) or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the 1933 Act or the 1934 Act. The Partnership will deliver or make available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Partnership’s financial statements.
(iix) During the The EVEP Parties will not, for a period beginning of 90 days from the date of the Final Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to sell 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 Units held by them or securities convertible into, or exchangeable for Common Units held by them, or sell or grant options, rights or warrants with respect to any Common Units held by them or securities convertible into or exchangeable for Common Units held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units held by them or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units (other than (1) any registration statement on Form S-8, (2) as otherwise excepted from this Agreement lock-up provision) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives; provided, however, that the foregoing restrictions do not apply to (a) issuances of Common Units pursuant to any existing employee benefit plans or (b) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and continuing capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance; and including the EVEP Parties will cause each of the directors and executive officers of the GP LLC, EnerVest, each of the EnCap Entities and EV Investors to furnish to the Underwriters, at or prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 60 days from the date that is 30 days after of the Closing Date, the Company will notFinal Prospectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofRepresentatives.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units as set forth in the description under “Use of Proceeds” in the Final Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the SEC Commission in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNASDAQ.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, it has not made and its subsidiaries will maintain not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto and keep accurate books any electronic road show. The Partnership agrees that (x) it has treated and records reflecting their assets will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and maintain internal accounting controls (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xiv) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) transactions are executed in accordance with management’s authorization, notify the Representatives promptly so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission; and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of Representatives in such quantities as the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsRepresentatives may reasonably request.
(pxv) If the Company Partnership elects to rely on Rule 462(b) under of the 1933 ActAct Rules and Regulations, the Company Partnership shall both file an Abbreviated Registration Statement with the SEC Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Rules and Regulations by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qb) The Company several Underwriters severally but not jointly, covenant and agree with the Partnership that unless it has obtained or will execute obtain, as the case may be, the prior written consent of the Partnership, it has not made and deliver will not make any stock purchase agreement reasonably requested offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule III hereto and any Investorelectronic road show.
Appears in 1 contract
Additional Covenants. (a) The Company Partnership covenants and agrees with the Placement Agents Underwriter that:
(ai) The Company Partnership will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(bii) The Company has furnished or Partnership will deliver or make available to the Placement Agents Underwriter, and to counsel for the Placement Agents, without charge, conformed copies Underwriter (i) a signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto, of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits consent and certificate included in, or filed therewith as an exhibit to, the Registration Statement as so amended or incorporated by reference therein and documents incorporated or deemed supplemented; the Partnership will deliver to be incorporated by reference therein) and conformed the Underwriter as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act; if there is a post-effective amendment to the Registration Statement that is not effective under the 1933 Act, the Partnership will use its best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the post-effective amendment to the Registration Statement has become effective; the Partnership will promptly advise the Underwriter of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement Prospectus or of any order Issuer Free Writing Prospectus or preventing or suspending the use of the Prospectus or any preliminary prospectus Issuer Free Writing Prospectus or preliminary prospectus supplement suspending the qualification or registration of the initiation Units for offering, issuance or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The Company which the Partnership shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(ciii) The Company Partnership will not file any amendment or supplement to the Registration Statement, the Prospectus or Issuer Free Writing Prospectus (or any other prospectus relating to the Securities Units filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file or any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Issuer Free Writing Prospectus, of which the Placement Agents Underwriter shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriter shall have reasonably objected in writing after being so advised unless the Partnership shall have determined based upon the advice of counsel that such amendment or which supplement is not in compliance with the 1933 Act Rules and Regulationsrequired by law; and the Company Partnership will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement Statement, the Prospectus or Issuer Free Writing Prospectus becomes effective or when any supplement to the Prospectus has been filed.
(div) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents the Underwriter or dealer, the Company Partnership will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(ev) If, during the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents the Underwriter or dealer, (i) any event relating to or affecting the Company Partnership or of which the Company Partnership shall be advised in writing by the Placement Agents Underwriter shall occur as a result of which, in the opinion of the Company Partnership or the Placement Agentscounsel for the Underwriter, the Prospectus or any Issuer Free Writing 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement Statement, the Prospectus or the any Issuer Free Writing Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company Partnership will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Underwriter a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(fvi) During the period when a prospectus relating to any of the Securities Units is required to be delivered under the 1933 Act by any Placement Agents the Underwriter or dealer, the Company Partnership will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Securities Units for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Underwriter may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictionsnecessary; provided, however, that the Company Partnership shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(gvii) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company Partnership will make generally available to its security holders and to holders of the Securities, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration StatementStatement as soon as practicable after the end of such period.
(hviii) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accountants accounting firm and furnish or make available quarterly reports containing financial statements and financial information which may be unaudited. The Partnership will, for a period of two years from the Delivery Date, furnish or make available to the Underwriter a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Units or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished or made available as soon as practicable after such report, document or information becomes publicly available.
(iix) During the The Inergy Entities will not, for a period beginning of 90 days from the date of the Prospectus, directly or indirectly, (i) offer for sale, sell, pledge, announce the intention to sell 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 Units or units of the MLP held by them or securities convertible into, or exchangeable for Common Units or units of the MLP held by them, or sell or grant options, rights or warrants with respect to any Common Units or units of the MLP held by them or securities convertible into or exchangeable for Common Units or units of the MLP held by them, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units or units of the MLP, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units or units of the MLP held by them or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Units or units of the MLP or securities convertible, exercisable or exchangeable into Common Units or units of the MLP (other than any registration statement on Form S-8 or as otherwise excepted from this Agreement lock-up provision) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, in each case without the prior written consent of the Underwriter; provided, however, that the foregoing restrictions do not apply to (a) issuances of Common Units or units of the MLP pursuant to any existing employee benefit plans or (b) issuances of Common Units or units of the MLP directly to a seller of a business as part of the purchase price or a private placement in connection with acquisitions and continuing capital improvements that increase cash flow from operations on a per unit basis. In the event that (i) during the last 17 days of the 90-day period described in the preceding sentence, the Partnership issues an earnings release or announces a material news or a material event or (ii) prior to the expiration of such 90-day period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then the restrictions described in the preceding sentence will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event. Each executive officer and including director of the Partnership shall furnish to the Underwriter, at or prior to the Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device 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 Units or securities convertible into or exchangeable for Common Units 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 Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, in each case for a period of 90 days from the date that is 30 days after of the Closing Date, the Company will notProspectus, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofUnderwriter.
(jx) The Company Partnership will apply the proceeds from the sale of the Securities Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K..
(kxi) The Company Partnership will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Units under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(nxii) The Company Partnership will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and Units on, the Investor Warrant Shares on The Nasdaq SmallCap MarketNasdaq.
(oxiii) The Company Partnership agrees that, unless it has obtained or will obtain the prior written consent of the Underwriter, it has not made and its subsidiaries will maintain not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the SEC or retained by the Partnership under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto and keep accurate books any electronic road show. The Partnership agrees that it has complied and records reflecting their assets will comply, as the case may be, with the requirements of Rules 164 and maintain internal accounting controls 433 applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(xiv) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which provide reasonable assurance that the Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Partnership will (i) transactions are executed in accordance with management’s authorization, notify promptly the Underwriter so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; (ii) transactions are recorded as necessary amend or supplement the Pricing Disclosure Package to permit the preparation of the Company’s consolidated financial statements correct such statement or omission; and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access supply any amendment or supplement to the assets of the Company and its subsidiaries is permitted only you in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalssuch quantities as you may reasonably request.
(pb) If The Underwriter covenants and agrees with the Company elects to rely on Rule 462(b) under Partnership that: The Underwriter agrees with the 1933 ActPartnership that, unless it has obtained or will obtain, as the case may be, the Company shall both file prior written consent of the Partnership, it has not made and will not make any offer relating to the Securities that would constitute an Abbreviated Registration Statement Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the SEC in compliance with or retained by the Partnership under Rule 462(b) and pay 433; provided that the applicable fees in accordance with Rule 111 prior written consent of the 1933 Act parties hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto, any electronic road show constituting a free writing prospectus under Rule 433 or any free writing prospectus filed by the earlier Partnership with the SEC prior to the use of (i) 9:00 p.m., St. Louis time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2)such free writing prospectus.
(q) The Company will execute and deliver any stock purchase agreement reasonably requested by any Investor.
Appears in 1 contract
Additional Covenants. The Company covenants and agrees with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to each of the Placement Agents Representatives, and to counsel for the Placement Agents, without charge, conformed Underwriters (i) four (4) signed copies of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein and documents incorporated in, or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of expertsfiled as an exhibit to, the Registration Statement as so amended or supplemented. The Company will deliver to the Underwriters through the Representatives as soon as practicable after the date of this Agreement as many copies of the Prospectus as the Representatives may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and each amendment thereto furnished to the Placement Agents it will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇notify you, except to the extent permitted by Regulation S-T or by Rule 424(b) promptly after it shall receive notice thereof, of the 1933 Rules and Regulationstime when the Registration Statement has become effective. The Company will promptly notify advise the Placement Agents Representatives of any request of the SEC for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representatives shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentatives, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representatives a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representatives may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; providedPROVIDED, howeverHOWEVER, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning earnings statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of five years from the Closing Date, deliver to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company's financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 180 days after the Closing Date, the Company will not, without the prior written consent of the Placement AgentsRepresentatives, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereofShares.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “"Use of Proceeds” " in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will shall not issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiariesSubsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiariesSubsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation listing of the Shares on, the American Stock Exchange and the Investor Warrant Shares on The Nasdaq SmallCap MarketPacific Stock Exchange.
(o) The Company will cause its directors and officers and each holder of in excess of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock, to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, and the Company will not, directly or indirectly, offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of any shares of Common Stock, any securities convertible into, or exercisable or exchangeable for, Common Stock or any other rights to acquire such shares, for a period of 180 days from the Effective Date (with respect to the officers and directors) or a period of 90 days from the Effective Date (for the holders of in excess of shares of Common Stock), without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder and except for sales of shares of Common Stock to the Company's employees pursuant to the exercise of options outstanding on the date hereof under the Company's stock option plan.
(p) The Company and its subsidiaries Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s 's authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s 's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiariesSubsidiaries, (iii3) access to the assets of the Company and its subsidiaries Subsidiaries is permitted only in accordance with management’s 's authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries Subsidiaries are compared with existing assets at reasonable intervals.
(pq) [Reserved].
(r) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(qs) The If at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company will execute shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and deliver any stock purchase agreement disseminate a press release or other public statement, reasonably requested by any Investorsatisfactory to you, responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Mission West Properties Inc)
Additional Covenants. The Company covenants and agrees with the Placement Agents that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents and counsel for the Placement Agents, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of expertsSection 5.1. The copies Preparation of the Registration Statement and the Proxy ------------------------------------------------------- Statement; Shareholders' Meetings; Partners' Consents. -----------------------------------------------------
(a) As soon as practicable following the date of this Agreement, Weeks and Duke shall (i) prepare and file with the SEC a preliminary joint Proxy Statement, with appropriate requests for confidential treatment, in form and substance satisfactory to each amendment thereto furnished of Duke and Weeks, and Duke will provide on a supplemental basis to the Placement Agents SEC the Registration Statement, in which the Proxy Statement will be identical included as a prospectus. Each of Weeks and Duke shall use its commercially reasonable efforts to the electronically transmitted copies thereof filed with the Commission pursuant cause and enable Duke to ▇▇▇▇▇, except (i) respond to the extent permitted by Regulation S-T or by Rule 424(b) any comments of the 1933 Rules staff of the SEC and Regulations(ii) have the Registration Statement declared effective under the Securities Act and the rules and regulations promulgated thereunder as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the REIT Merger. The Company Each of Weeks and Duke will use its commercially reasonable efforts to cause the Proxy Statement to be mailed to Weeks' shareholders and Duke's shareholders, respectively, as promptly as practicable after the Registration Statement is declared effective under the Securities Act. Each party will notify the Placement Agents other promptly of the issuance receipt of any comments from the SEC and of any request by the SEC of any stop order suspending the effectiveness of for amendments or supplements to the Registration Statement or the Proxy Statement or for additional information and will supply the other with copies of any order preventing all correspondence between such party or suspending the use of any preliminary prospectus or preliminary prospectus supplement or of the initiation or threatening of any proceedings for any of such purposesits representatives and the SEC with respect to the Registration Statement or the Proxy Statement. The Company will use its best efforts Registration Statement and the Proxy Statement shall comply in all material respects with all applicable requirements of Law. Whenever any event occurs which is required to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will not file any be set forth in an amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the ProspectusProxy Statement, Duke or Weeks, as the case may be, shall promptly inform the other of which the Placement Agents shall not previously have been advised such occurrences and furnished with a copy or to which the Placement Agents shall have reasonably objected or which is not cooperate in compliance filing with the 1933 Act Rules and Regulations; SEC and/or mailing to the shareholders of Duke and the Company will promptly notify you after it shall have received notice thereof shareholders of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents shall occur as a result of which, in the opinion of the Company or the Placement Agents, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents a reasonable number of copies of, Weeks such amendment or supplement or other filing that will correct such statement or omission or effect such compliancein a form reasonably acceptable to Duke and Weeks.
(fb) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesWeeks will, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 days after the Closing Date, the Company will not, without the prior written consent of the Placement Agents, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the date hereof.
(j) The Company will apply the proceeds from the sale of the Securities as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the Prospectus.
(l) Prior to the Closing Date, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by reference.
(m) Except as required by law, prior to the Closing Date, the Company will issue no press release or other communication, directly or indirectly, and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Securities, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on The Nasdaq SmallCap Market.
(o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (iii) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s authorization, and (iv) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (iithe "Weeks Shareholders Meeting") (but in no event shall such -------------------------- meeting be held sooner than 20 business days following the time that confirmations are given or sentdate the Proxy Statement is mailed to its shareholders), for the purpose of obtaining the Weeks Shareholder Approvals. Duke will, as specified by Rule 462(b)(2soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Duke Shareholders Meeting") (but in no event shall such ------------------------- meeting be held sooner than 20 business days following the date the Proxy Statement is mailed to its shareholders).
(q) The Company , for the purpose of obtaining the Duke Shareholder Approvals. Weeks and Duke will execute cooperate in good faith to seek to ensure that the Weeks Shareholder Meeting and deliver the Duke Shareholder Meeting are held on the same day, as close together in time as is reasonably practicable. Duke covenants that, subject to Section 7.1, Duke will, through its Board of Directors, recommend to its shareholders approval of the REIT Merger, the OP Merger, this Agreement, the OP Merger Agreement, the charter and bylaw amendments, the election of directors and the other transactions contemplated hereby and thereby and further covenants that the Proxy Statement will include such recommendation. Weeks covenants that, subject to Section 7.1, Weeks will, through its Board of Directors, recommend to its shareholders approval of the REIT Merger, the OP Merger, this Agreement, the OP Merger Agreement and the other transactions contemplated hereby and thereby and further covenants that the Proxy Statement will include such recommendation. Duke shall furnish all information concerning Duke and the holders of Duke Common Stock as may reasonably be requested in connection with any stock purchase agreement action required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of Duke Common Stock pursuant to the REIT Merger, and Weeks shall furnish all information concerning Weeks and the holders of Weeks Stock as may be reasonably requested in connection with any such action. Each of Duke and Weeks will use their commercially reasonable efforts to cause Duke to obtain, prior to the effective date of the Registration Statement, all necessary state securities or "blue sky" permits or approvals required to carry out the REIT Merger and the other transactions contemplated by any Investorthis Agreement. In connection with the preparation of the Proxy Statement and the Registration Statement, Duke shall use reasonable efforts to cause to be delivered to Weeks, prior to the mailing of the Proxy Statement to Weeks' shareholders and Duke's shareholders, the opinion dated the date of the Proxy Statement of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, substantially in the form attached hereto as Exhibit L (subject to customary exceptions, assumptions and qualifications, and --------- based on customary representations), regarding the qualification of Duke as a REIT under the Code and the treatment of Duke OP as a partnership for federal income tax purposes. In issuing its opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall be permitted to rely on the opinion of King & Spalding as to the qualification of Weeks as a REIT. In connection with the preparation of the Proxy Statement and the Registration Statement, Weeks shall use reasonable efforts to cause to be delivered to Duke, prior to the mailing of the Proxy Statement to Weeks' shareholders and Duke's shareholders, the opinion dated the date of the Proxy Statement of King & Spalding, substantially in the form attached hereto as Exhibit K (subject to customary exceptions, assumptions and qualifications, and --------- based on customary representations), regarding the qualification of Weeks as a REIT under the Code and the treatment of Weeks OP as a partnership for federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Weeks Corp)
Additional Covenants. The Company covenants and, where expressly indicated, the Selling Shareholders, covenant and agrees agree with the Placement Agents several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company has furnished or will deliver to the Placement Agents Representative and to counsel for the Placement Agents, without charge, conformed copies Underwriters (i) one signed copy of the Registration Statement as originally filed filed, including copies of exhibits thereto (other than any exhibits incorporated by reference therein), of any amendments and supplements to the Registration Statement and (ii) a signed copy of each amendment thereto (including exhibits filed therewith consent and certificate included or incorporated by reference therein and documents incorporated in, or deemed filed as an exhibit to, the Registration Statement as so amended or supplemented; the Company will deliver to be incorporated by reference therein) and conformed the Underwriters through the Representative as soon as practicable after the date of this Agreement as many copies of all consents the Prospectus as the Representative may reasonably request for the purposes contemplated by the 1933 Act; if the Registration Statement is not effective under the 1933 Act, the Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and certificates it will notify you, promptly after it shall receive notice thereof, of experts. The copies the time when the Registration Statement has become effective; the Company will promptly advise the Representative of any request of the SEC for amendment of the Registration Statement and each amendment thereto furnished or for supplement to the Placement Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇Prospectus or for any additional information, except to the extent permitted by Regulation S-T or by Rule 424(b) of the 1933 Rules and Regulations. The Company will promptly notify the Placement Agents of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or of any order supplemented) or preventing or suspending the use of any preliminary prospectus Preliminary Prospectus or preliminary prospectus supplement the Prospectus or suspending the qualification or registration of the initiation Shares for offering or threatening sale in any jurisdiction, and of the institution or threat of any proceedings for any therefor, of such purposes. The which the Company shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Shares; and the Company will use its best efforts to prevent the issuance of any such stop order or other order and, if any stop order is issued, to obtain secure the lifting thereof at the earliest possible momentprompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Securities Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Securities by the Company if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus), of which the Placement Agents Underwriters shall not previously have been advised and furnished with a copy or to which the Placement Agents Underwriters shall have reasonably objected (unless the Company shall have determined based upon the advice of counsel that such amendment or supplement is required by law) or which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Placement Agents Representative shall occur as a result of which, in the opinion of the Company or the Placement AgentsRepresentative, 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, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Placement Agents Representative a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Securities Shares is required to be delivered under the 1933 Act by any Placement Agents Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Placement Agents Representative may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to its security holders and to holders of the SecuritiesShares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of the Securities is required to be delivered under the 1933 Act by any Placement Agents or dealer, the Company will file promptly all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish or make available to its security holders annual reports containing financial statements audited by independent registered public accountants and quarterly reports containing financial statements and financial information which may be unaudited. The Company will, for a period of two years from the Closing Date, furnish or make available to the Underwriters at their principal executive offices a reasonable number of copies of annual reports, quarterly reports, current reports and copies of all other documents, reports and information furnished by the Company to its shareholders or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the 1933 Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any report, document or other information required to be furnished under this paragraph (h) shall be furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and including the date that is 30 earlier of (i) the termination of trading restrictions on the Shares, as determined by the Underwriters, and (ii) 90 days after the Closing Datedate of the Prospectus, the Company will not, without the prior written consent of the Placement AgentsRepresentative, offer for sale, sell or enter into any agreement to sell, or otherwise dispose of, any equity securities of the Company, except for the Securities; provided, however, that the Company may issue, Shares or grant options to purchase, shares of Common Stock pursuant to any employee stock incentive plan existing on the ▇▇▇▇▇▇▇▇ Advisors, Inc. 2001 Omnibus Plan as in existence as of the date hereofof the Prospectus.
(j) The Company will apply the proceeds from the sale of the Securities Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Securities Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus which the Company files with the SEC at any time until the expiration of one year from the date of the ProspectusAct.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus or incorporated therein by referenceProspectus.
(m) Except as required by law, prior Prior to the Closing DateDate (and, if applicable, the Option Closing Date), neither the Company nor any Selling Shareholder will issue no any press release releases or other communication, communications directly or indirectly, indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the SecuritiesShares, without your prior written consent. In the event that any such disclosure is required by law, the Company will promptly notify you of such required disclosure prior to issuing any press release or other communication or holding any press conference, and, to the extent reasonably practicable, the Company will permit you to comment on any press release or other communication.
(n) The Company will use its reasonable best efforts to obtain approval for, and maintain the quotation of the Shares and the Investor Warrant Shares on on, The Nasdaq SmallCap National Market.
(o) The Company will cause its directors and officers and each holder of 5% of shares of Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock, to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree not to, and the Company will not, and will not publicly announce any intention to, during the period ending 90 days after the date of the Prospectus, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., on behalf of the Underwriters, directly or indirectly, (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; (2) 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 or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any registration statement with the SEC relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The restrictions contained in the preceding paragraph shall not apply to (a) the sale of the Shares to the Underwriters, (b) the issuance by the Company of 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 Representative has been advised in writing; provided that the underlying shares of Common Stock issued to any Selling Shareholder subject to Section 5(w)(iv) or other person who has delivered a lock-up agreement pursuant to this Section 5(o) hereto shall continue to be subject to the restrictions contained in the immediately preceding paragraph, Section 5(w)(iv) or such lock-up agreement, as applicable; (c) the issuance by the Company of shares of Common Stock or options to purchase shares of Common Stock to, or the repurchase by the Company of unvested shares of Common Stock upon termination of service from, an employee, director, consultant other service provider, pursuant to the Company’s stock incentive plans in effect on the date hereof; provided that the shares of Common Stock or options to purchase shares of Common Stock issued to the Company’s directors and executive officers shall be subject to the restrictions contained in the lock-up agreements delivered pursuant to this Section 5(o); and (d) the filing by the Company of any registration statement with the Commission on Form S-8 relating to the offering of securities pursuant to the terms of a stock incentive plan of the Company in effect on the date hereof. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to 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 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. The Company shall promptly notify the Representative and the Selling Shareholders of any earnings release, news or event that may give rise to an extension of the initial 90-day restricted period.
(p) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i1) transactions are executed in accordance with management’s general or specific authorization, (ii2) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its subsidiaries, (iii3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management’s general or specific authorization, and (iv4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervalsintervals and appropriate action is taken with respect to any differences.
(pq) If the Company elects to rely on Rule 462(b) under the 1933 Act, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 10:00 p.m., St. Louis New York time, on the date of this Agreement, and (ii) at such later date and time as may be approved by the time that confirmations are given or sent, as specified by Rule 462(b)(2)Representative.
(qr) If at any time during the 90-day period after the Registration Statement becomes effective, any publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such publication or event.
(s) During a period of 90 days from the Effective Date, the Company shall not, without the consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., file a registration statement under the 1933 Act except for any registration statement registering shares under any employee benefit plan.
(t) The Company will execute comply with all applicable securities and deliver other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and will 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(u) Each of the Selling Shareholders severally agrees with the several Underwriters as follows:
(i) Such Selling Shareholder will cooperate to the extent necessary to cause the Registration Statement or any stock purchase agreement reasonably requested by any Investor.post-effective amendment theret
Appears in 1 contract